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LEGAL  MAXIMS, 


OBSERVATIONS   AND   CASES 


PART  I. 


ONE   HUNDEED   MAXIMS, 

WITH  OBSERVATIONS  AND  REFERENCES  TO  ENGLISH  CASES. 

PART  II. 
EIGHT  HUNDEED  MAXIMS, 

WITH  TRANSLATIONS. 


GEORGE    FREDERICK    WHARTON, 

OF    THE    ENGLISH    BAR. 


TO   WHICH  IS   ADDED   IN  THIS  EDITION, 
PART  III. 

SEVERAL    HUNDRED    MAXIMS, 

WITH  REFERENCES  TO  AMERICAN  CASES. 


NEW  YOEK : 
BAKER,  YOORHIS  &  CO.,  LAW  PUBLISIIEES, 

06     NASSAU     STREET, 
1878. 


Copyright,    1878, 
By  Baker,  Vookhis  <t  Co. 


Bakeb  &  Godwin,  Printers, 
No.  25  Park  Row,  N.  Y. 


PUBLISHERS'   PREFACE 

\  TO     THE     AMERICAN     EDITION, 

|jlR.OM  the  numerous  inquiries  made  from  time  to  time, 
.  by  students  and  practitioners,  for  a  full  collection  of  Legal 
Maxims,  the  publishers  were  induced  to  reprint  Mr.  Whar- 
ton's work,  which,  perhaps,  is  the  most  popular  of  its  kind, 
giving  One  Hundred  of  the  principal  Maxims,  with  a  short 
essay  on  each,  and  referring  to  the  most  important  cases 
in  the  various  English  reports.  In  addition  to  these,  Mr. 
Wharton  gives  no  less  than  Eight  Hundred  Latin  Legal 
Maxims  translated  into  English.  The  publishers  know  of 
no  other  work  which  gives  so  large  a  number  as  above 
named. 

But  to  render  this  edition  still  more  serviceable  to  the 
American  lawyer,  the  publishers,  through  the  kindness  of 
Mr.  Austin  Abbott,  have  been  enabled  to  supplement  'Mr. 
Wharton's  collection  by  the  addition  of  Part  III  (taken 
from  Abbott's  New  York  Digest),  giving  several  hundred 
Maxims  which  have  been  applied  or  commented  on  by  the 
court  of  last  resort,  or  other  courts  of  general  jurisdiction, 
of  the  State  of  New  York,  in  the  cases  cited.  This  list  in- 
cludes, it  is  believed,  all  the  most  important  legal  Maxims 
occurring  in  American  practice. 

Also,  there  will  be  found  at  the  end  of  this  volume,  un- 
der the  head  of  "  Maxims  of  Jurisprudence,"  a  very  valua- 
ble collection,  with  full  comments  and  illustrations,  taken 
from  the  Civil  Code  prepared  for  the  State  of  New  York, 


4  PUBLISHERS'  PREFACE. 

by  the  Commissioners  of  tlie  Code,  in  1857-1865.  The  leg- 
islature failed  to  act  upon  the  proposed  Code.  Subsequently 
the  State  of  California,  on  adopting  with  some  modifications, 
as  the  law  of  tliat  State,  the  labors  of  the  New  York  Com- 
missioners, included  in  its  Code  the  Maxims  now  given  at 
the  end  of  this  work. 

Having  thus  greatly  enlarged  the  scope  and  usefulness  of 
Mr.  "Wharton's  work — certainly  this  volume  now  contains 
nearly  double  the  number  of  Legal  Maxims  to  be  found  in 
any  similar  work — the  publishers  hope  it  may  meet  the  ap- 
proval of  that  profession  whose  wants  it  has  been  their 
privilege  so  long  to  anticipate,  ascertain,  and  supply. 

New  York,  January,  1878. 


THE    VIRTUE    OF   MAXIMS. 

There  is  a  certain  charm  about  a  legal  maxim.  It  seems  to  put  so 
much  wisdom  in  so  few  words  and  with  so  conclusive  effect.  Having 
heard  a  maxim  which  applies  to  a  given  case,  the  case  appears  to  be 
closed.  It  covers  the  ground,  and  silences  controversy.  The  difficulty 
about  settling  a  question  by  this  means  is  that  we  cannot  always  stop 
with  one  maxim.  Generally  several  maxims  are  applicable,  and  the  second 
demands  usually  a  very  different  answer  to  the  question  from  that  given  by 
the  first.  When  legal  maxims  are  invoked  to  determine  a  mooted  point, 
the  mind  is  in  the  condition  of  the  oft-cited  justice  who,  after  hearing 
one  side,  objected  to  hearing  the  other,  because  it  unsettled  his  opinion. 
Maxims  have  therefore  always  been  peculiarly  appropriate  authorities  un- 
-der  the  systems  derived  from  the  Roman  law,  where  a  tribunal  determines 
a  case  free  from  the  embarrassments  involved  in  settling  or  unsettling  pre- 
<;edents,  and  needs  chiefly  to  invoke  a  sound  principle  as  a  justification  for 
an  isolated  decision.  When  the  attempt  is  made,  under  our  system  of  juris- 
prudence, to  solve  a  question  by  maxims,  it  usually  results  in  resolving  the 
•question  into  another  double  question  quite  as  debatable  as  the  first,  viz. : 
Which  of  two  maxims  is  properly  applicable  ?  For  instance,  "  Equality  is 
equity,"  but  on  the  other  hand,  "He  who  is  prior  in  time  is  stronger  in 
right,"  and  "  The  law  aids  the  vigilant,  not  the  negligent."  Upon  almost 
«very  subject  the  maxims  of  jurisprudence  balance  themselves  against  each 
other  in  this  way;  and  the  function  of  justice  is  to  hold  the  scales  so  that 
the  preponderating  principle  shall  determine  the  cause. 

The  best  use  of  maxims  under  our  system  is  not  as  authorities,  like  a 
statute  or  precedent,  but  as  aids  to  counsel  in  the  investigation  of  the  con- 
troversy, and  in  determining  in  preparation  for  trial  what  is  the  central 
principle  involved,  and  where  the  weight  of  justice  lies.  He  who  will  lake 
up  the  merits  of  a  case  with  a  view  to  ascertain  what  settled  maxims  of 
the  law  are  susceptible  of  application  to  it,  and  how  they  may  be  applied, 
and  why  one  should  be  represented  in  the  result  and  not  another,  will  find 
clearness  and  simplicity  in  his  view  of  the  case,  and  a  vigor  and  strength 
in  his  argument,  which  he  would  not  be  likely  to  attain  from  a  mere  review 
of  precedents.  He  may  not  after  all  rely  on  a  maxim,  or  even  quote  it  as 
influencing  the  result,  but  he  will  be  likely  to  find  that  the  test  to  which 
he  has  brought  his  case  has  promoted  much  his  mastery  of  the  vital  prin- 
ciples on  which  it  will  turn. — Austin  Ajjbott. 


THE   AUTHOR'S   PREFACE. 

rriHE  object  of  tliis  work  is  to  encourage  in  law  students 
a  study  of  the  first  principles  of  the  law,  without  a 
knowledge  of  which  all  other  is  useless ;  and,  with  that  ob- 
ject, its  chief  professed  merit  is  simplicity  of  arrangement. 
The  student  must  not  suppose  that,  because  the  number 
of  maxims  specially  considered  and  explained  in  the  first 
part  of  the  work  amounts  to  One  Hundred  only,  and  the 
number  of  those  in  the  second  part,  to  which  translations 
are  given,  to  Eight  Hundred  only,  he  must  search  elsewhere 
for  other  maxims  to  assist  him  in  his  legal  studies.  He 
may  rest  assured  that  the  two  parts  of  the  work,  small  as 
it  may  appear,  contain  all  those  maxims  or  rules  of  law 
which  are  necessary  to  enable  him  to  obtain  a  perfect  knowl- 
edge of  the  first  principles  of  the  laws  and  Constitution  of 
this  country,  and  by  which  alone  he  can  obtain  such  knowl- 
edge. He  may  rest  assured,  also,  that  all  others  are  but 
part  and  parcel  of  these,  though  their  number  be  legion. 
Nor  should  it  be  omitted  to  be  stated,  that  the  student 
must  not  suppose  that  these  maxims  are  mere  obsolete  Latin 
phrases,  referring  to  bygone  days,  having  no  applicability  to 
the  law  as  now  administered  in  this  country ;  or  that,  being 
80  applicable,  they  are  so  only  as  to  some  general  principles 
too  theoretical  to  be  of  service  to  a  modern  practitioner ; 
but,  let  him  be  assured,  that  they  are  of  every-day  use  and 
application,  and  of  absolute  necessity  in  the  consideration  of 
each  minor  branch  of  the  two  great  divisions  of  the  law, 
civil  and  criminal,  and  of  the  numberless  subjects  continu- 
ally occurring  in  the  ordinary  transactions  of  daily  life 
within  tlie  range  of  each  such  branch. 


8  THE   AUTHOR'S   PREFACE. 

The  student  must  also  be  pleased  to  bear  in  mind  that 
this  "is  not  a  book  intended  to  be  carelessly  read,  and  then 
as  carelessly  laid  aside ;  but  that  it  is  intended  that  the 
whole  of  the  One  Hundred  maxims  and  translations  be  com- 
mitted to  memory.  This  may  be  very  easily  done  in  the 
course  of  a  few  weeks,  and  when  so  done,  with  consideration 
and  care,  the  student  will  find  that  the  knowledge  so  ac- 
quired will  be  of  incalculable  benefit  to  him,  not  only  now 
as  a  student,  but  in  his  after  career  as  a  lawyer,  Maxims 
of  law  not  being,  as  the  law,  constantly  changing,  but  re- 
maining the  same  always,  as  unerring  principles  of  truth,  in 
accordance  with  which  all  laws  now  and  hereafter  to  be 
made  have  been,  and  will  be  made,  and  being  made,  have 
been  hitherto,  and  will  still  be,  interpreted. 

With  a  view  to  assist  the  student  in  committing  the  One 
Hundred  maxims  to  memory,  the  two  tables  of  maxims  and 
translations  are  (blended  together  in  this  edition)  given  at 
the  commencement. 

A  few  cases  are  given  at  the  foot  of  each  of  the  One 
Hundred  maxims  to  enable  the  student  to  pursue  their 
further  consideration,  should  he  be  so  inclined. 

Manchester,  April,  1865. 


TABLE  OF  MAXIMS  IN  THE  FIRST  PART. 

LATIN  AND   ENGLISH. 


1.  Accessorium  non  ducit  sed  sequitur  suum  principale. 
The  accessory  does  not  lead  but  follows  its  principal. 

2.  Actio  personalis  moritur  cum  persona. 

A  personal  riglit  of  action  dies  with  the  person. 

3.  Actus  curiae  neminem  gravabit. 
An  act  of  the  court  hurts  no  one. 

4.  Actus  Dei  vel  legis  nemini  facit  injuriam. 

The  act  of  God  or  of  law  is  prejudicial  to  no  one. 

5.  Actus  non  facit  reum,  nisi  mens  sit  rea. 

The  act  itself  does  not  constitute  guilt  unless  done  with  a  guiltj 
intent. 

6.  Ad  ea  quae  frequentius  accidunt  jura  adaptantur. 

The  laws  are  adapted  to  those  cases  which  most  frequently  occur. 

7.  Ad  qufestionem  facti  non  respondent  judices ;  ad  quaestionem  juris  non 

respondent  juratores. 
To  questions  of  fact  judges  do  not  answer:  to  questions  of  law  the 
jury  do  not  answer. 

8.  Alienatio  rei  praefertur  juri  accrescendi. 

Alienation  of  property  is  favored  by  the  law  rather  than  accumulation. 

9.  Allegans  contraria  non  est  audiendus. 
Contrary  allegations  are  not  to  be  heard. 

10.  Ambiguitas  verborum  latens  verificatione  supplctur;    nam  quod   ex 

facto  oritur  ambiguum  verifications  facti  toUitur. 
Latent  ambiguity  of  words  may  be  supplied  by  evidence ;  for  ambigu- 
ity arising  upon  the  deed  is  removed  by  proof  of  the  deed. 

11.  Argumentum  ab  inconvenienti  plurimum  valet  in  lege. 
An  argument  from  inconvenience  avails  much  in  law. 

12.  Assignatus  utitur  jure  auctoris. 

That  which  is  assigned  takes  with   it  for  its  use  the  rights  of  the 
assignor. 

13.  Benigne  faciendaj  sunt  interprctationcs,   propter  simplicitatcm  laico- 

rum,  ut  res  magis  valeat  quam  percat ;  et  verba  intentioni,  non  e  con- 
tra, debent  inscrvire. 
Liberal  constructions  of  written  documents  are  to  bo  made,  because  of 
the  simplicity  of  the  laity,  and  with  a  view  to  carry  out  the  inten- 
tion of  the  parties  and  uphold  the  document ;  and  words  ought  to 
bo  made  subservient,  not  contrary  to  the  intention. 


10  TABLE   OF   MAXIMS 

14.  Boni  judicis  est  ampliare  jurisdictionem. 

A  ^ood  judge  will,  when  necessary,  extend  the  limits  of  his  jurisdic- 
tion, 

15.  Caveat  emptor;  qui  ignorare  non  debuit  quod  jus  alienum  emit. 

Let  a  purchaser  beware ;  no  one  ought  in  ignorance  to  buy  that  which 
is  the  right  of  another. 

16.  Certum  est  quod  certum  reddi  potest. 

That  is  certain  which  is  able  to  be  rendered  certain. 

17.  Cessante  ratione  legis,  cessat  ipsa  lex. 

The  reason  of  the  law  ceasing,  the  law  itself  ceases. 

18.  Communis  error  facit  jus. 
Common  error  makes  right. 

19.  Consensus  non  concubitus  facit  matrimonium :  et  consentire  non  pos- 

sunt  ante  annos  nubiles. 
Consent,  and  not  concubinage,  constitutes  marriage ;  and  they  are  not 
able  to  consent  before  man-iageable  years. 

20.  Consensus  toilet  errorem. 
Consent  takes  away  error. 

21.  Contemporanea  expositio  est  optima  et  fortissima  in  lege. 

A  contemporaneous  exposition  is  the  best  and  strongest  in  law. 

22.  Cuicunque  aliquis  quid  concedit,  concedere  videtur  et  id  sine  quo  res 

ipsa  esse  non  potuit. 
The  grantor  of  anything  to  another  grants  that  also  without  which 
the  thing  granted  would  be  useless. 

23.  Cuilibet  in  sua  arte  perito  est  credendum. 
Whosoever  is  skilled  in  his  profession  is  to  be  believed. 

24.  Cujus  est  solum,  ejus  est  usque  ad  coelum ;  et  ad  inferos. 
Whose  is  the  land,  his  is  also  that  which  is  above  and  below  it. 

25.  Cum  duo  inter  se  pugnantia  reperiuntur  in  testamento,  ultimum  ratum 

est. 
Where  two  clauses  in  a  will  are  repugnant  one  to  the  other,  the  last 
in  order  shall  prevail. 

26.  Cursus  curiae  est  lex  curiae. 

The  practice  of  the  court  is  the  law  of  the  court. 

27.  De  fide  et  officio  judicis  non  recipitur  quaestio;  sed  de  scientia,  sive 

error  sit  juris  aut  facti. 
Of  the  good  faith  and  intention  of  a  judge,  a  question  cannot  be  en- 
tertained ;  but  it  is  otherwise  as  to  his  knowledge  or  error,  be  it 
in  law  or  in  fact. 

28.  De  minimis  non  curat  lex. 

Of  trifles  the  law  does  not  concern  itself, 

29.  De  non  apparentibus,  et  non  existentibus,  eadem  est  ratio. 

Of  things  which  do  not  appear  and  things  which  do  not  exist,  the  rule 
in  legal  proceedings  is  the  same. 

30.  Dies  Dominicus  non  est  juridicus. 

The  Lord's  day  (Sunday)  is  not  juridical,  or  a  day  for  legal  pro- 
ceedings. 


IN  THE   FIRST  PART.  11 

31.  Domus  sua  quique  est  tutissimum  refugium. 

To  every  one,  Lis  house  is  his  surest  refuge;  or,  every  man's  house  i& 
his  castle. 

32.  Ex  antecedentibus  et  consequentibus  fit  optima  interpretatio. 

From  that  which  goes  before,  and  from  that  which  follows,  is  derived, 
the  best  interpretation. 

33.  Ex  dolo  malo  non  oritur  actio. 

From  fraud  a  right  of  action  does  not  arise. 

34.  Executio  juris  non  habet  injuriam. 

The  execution  of  the  process  of  the  law  does  no  injury. 

35.  Ex  nudo  pacto  non  oritur  actio. 

From  a  nude  contract,  i.  e.,  a  contract  without  consideration,  an  action 
does  not  arise. 

36.  Expressio  unius  personae,  vel  rei,  est  exclusio  alterius. 

The  express  mention  of  one  person  or  thing  is  the  exclusion  of  another. 

37.  Falsa  deraonstratio  non  nocet. 

A  false  description  does  not  vitiate  a  document, 

38.  Hasres  legitimus  est  quem  nuptise  demonstrant. 

The  lawful  heir  is  he  whom  wedlock  shows  so  to  be. 

39.  Ignorantia  facti  excusat ;  ignorantia  juris  non  excusat. 
Ignorance  of  the  fact  excuses;  ignorance  of  the  law  does  not  excuse. 

40.  Irapotentia  excusat  legem. 
Impotency  excuses  law. 

41.  In  sequali  jure,  melior  est  conditio  possidentis. 

In  equal  rights,  the  condition  of  the  possessor  is  the  better. 

42.  In  fictione  juris  semper  fequitas  existit. 
In  fiction  of  law  equity  always  exists. 

43.  In  jure  non  remota  causa,  sed  proxima,  spectatur. 

In  law  the  proximate,  and  not  the  remote  cause,  is  to  be  regarded. 

44.  Interest  reipublicse  ut  sit  finis  litium. 

It  concerns  the  State  that  there  be  an  end  of  lawsuits. 

45.  Jus  accrescendi  inter  mercatores,  pio  beneficio  commercii,  locum  non 

habet. 
For  the  benefit  of  commerce,  there  is  not  any  right  of  survivorship 
among  merchants. 

46.  Leges  posteriores  priores  contrarias  abrogant. 
Later  laws  abrogate  prior  contrary  laws. 

47.  Licet  dispositio  de  interesse  futuro  sit  inutilis,  tamen  fieri  potest  decla- 

ratio  prajcedens  quae  sortiatur  eff"ectum,  interveniente  novo  actu. 
Although  the  grant  of  a  future  interest  is  invalid,  yet  a  precedent 
declaration  may  be  made,  which  will  take  effect  on  the  intervention 
of  some  new  act. 

48.  Modus  et  conventio  vincunt  legem. 
Custom  and  agreement  overrule  law. 

49.  Necessitas  inducit  privilegium  quoad  jura  privata. 
Necessity  induces  or  gives  a  privilege  as  to  private  rights. 


12  TABLE   OF   MAXIMS 

50.  Nemo  debet  bis  vexari,  si  constat  curiae  quod  sit  pro  una  et  eadem 

causa. 
No  man  ought  to  be  twice  punished,  if  it  be  proved  to  the  court  that 
it  be  for  one  and  the  same  cause. 

51.  Nemo  debet  esse  judex  in  propria  causa. 
No  one  should  ba  judge  in  his  own  cause. 

52.  Nemo  est  hseres  viventis. 
No  one  is  heir  of  the  living. 

53.  Nemo  patriam  in  qua  natus  est  exuere,  nee  ligeantiae  debitum  ejurare 

possit. 
A  man  cannot  abjure  liis  native  country,  nor  the  allegiance  he  owes 
his  sovereign. 

54.  Nemo  tenetur  seipsum  accusare. 

No  one  is  bound  to  criminate  himself. 

55.  Nihil  tam  conveniens  est  naturali  aequitati  quam  unumquodque  dis- 

solvi  eo  ligamine  quo  ligatum  est. 
Nothing  is  so  agreeable  to  natural  equity  as  that,  by  the  like  means  by 
■which  anything  is  bound,  it  may  be  loosed. 

56.  Nimia  subtilitas  injure  reprobatur,  et  talis  certitudo  certitudinem  con- 

fundit. 
Nice  and  subtle  distinctions  are  not  sanctioned   by  the  law;    for  so 
apparent  certainty  would  be  made  to  confound  true  and  legal  cer- 
tainty. 

57.  Non  jus,  sed  seisina,  facit  stipitem. 
Not  right,  but  seizin,  makes  the  stock. 

58.  Non  potest  adduci  exceptio  ejus  rei  cujus  petitur  dissolutio. 

It  is  not  permitted  to  adduce  a  plea  of  the  matter  in  issue  as  a  bar 
thereto. 

59.  Noscitur  a  sociis. 

The  meaning  of  a  word  may  be  ascertained  by  reference  to  those  asso- 
ciated with  it. 

60.  Nova  constitutio  futuris  formam  imponere  debet,  non  pra^teritis. 

A  new  law  ought  to  impose  form  on  what  is  to  follow,  not  on  the  past. 

61.  Nullum  tempus,  aut  locus,  occurrit  regi. 

No  time  runs  against,  or  place  affects,  the  king. 

62.  NuUus  commodum  capere  potest  de  injuria  sua  propria. 
No  one  can  take  advantage  of  his  own  wrong. 

63.  Omne  majus  continet  in  se  minus. 
The  greater  contains  the  less. 

64.  Omnia  prajsumuntur  contra  spoliatorem. 

All  things  are  presumed  against  a  wrong- doer. 

65.  Omnia  praesumuntur  rite  et  solenniter  esse  acta. 

All  things  are  presumed  to  be  correctly  and  solemnly  done. 

66.  Omnis  innovatio  plus  novitate  perturbat  quam  utilitate  prodest. 
Every  innovation  disturbs  more  by  its  novelty  than  benefits  by  ita 

utility. 

67.  Omnis  ratibabitio  retrotrahitur,  et  mandato  priori  sequiparatur. 
Every  ratitication  of  an  act  already  done  has  a  retrospective  effect,  and 

is  equal  to  a  previous  request  to  do  it. 


IN  THE   FIRST   PART.  13 

68.  Optimus  interpres  rerum  usus. 

The  best  interpreter  of  things  is  usage. 

69.  Persona  conjuncta  sequiparatur  interesse  proprio. 

A  personal  connection  equals  in  law  a  man's  own  proper  interest. 

70.  Quando  jus  domini  regis  et  subditi  concurrunt,  jus  regis  praeferri  debet. 
When  the  rights  of  the  king  and  of  the  subject  concur,  those  of  the 

king  are  to  be  preferred. 

71.  Quando  lex  aliquid  alicui  concedit,  concedere  videtur  id  sine  quo  res 

ipsa  esse  non  potest. 
When  the  law  gives  anything  to  any  one,  it  gives  also  all  those  things 
■without  which  the  thing  itself  would  be  unavailable. 

72.  Quando  plus  fit  quam  fieri  debet,  videtur  etiam  illud  fieri  quod  facien- 

dum est. 
When  more  is  done  than  ought  to  be  done,  then  that  is  considered  to 
have  been  done  which  ought  to  liave  been  done. 

73.  Quicquid  plantatur  solo  solo  cedit. 

Whatever  is  affixed  to  the  soil  belongs  to  the  soil. 

74.  Quicquid  solvitur,  solvitur  secundum  modum  solventis;  quicquid  re- 

cipitur,  recipitur  secundum  modum  recipientis. 
Whatever  is  paid,  is  paid  according  to  the  intention  or  manner  of  the 
party  paying ;  wiiatever  is  received,  is  received  according  to  tlie 
intention  or  manner  of  the  party  receiving, 

75.  Qui  facit  per  alium  facit  per  se. 

He  who  does  anything  by  another,  does  it  by  himself. 

76.  Qui  hfEret  in  litera  hseret  in  cortice. 

He  who  sticks  to  the  letter,  sticks  to  the  bark:  or,  he  who  considers 
the  letter  merely  of  an  instrument  cannot  comprehend  its  meaning. 

77.  Qui  jnssu  judicis  aliquod  fecerit,  non  videtur  dolo  malo  fecisse,  quia 

parere  necesse  est. 
He  who  does  anything  by  command  of  a  judge  will  not  be  supposed 
to  have  acted  from  an  improper  motive ;  because  it  was  necessary 
to  obey. 

78.  Quilibet  potest  renunciare  juri  pro  se  introducto. 

Every  man  is  able  to  renounce  a  right  introduced  for  himself. 

79.  Qui  prior  est  tempore  potior  est  jure. 

He  who  is  first  in  time  has  the  strongest  claim  in  law. 

80.  Qui  sentit  commodum,  sentire  debet  et  onus;  et  e  contra. 

He  who  enjoys  the  benefit  ought  also  to  bear  the  burden ;    and  the 
contrary. 

81.  Quod  ab  initio  non  valet,  in  tractu  temporis  non  convalescit. 

That  which  is  bad  from  the  beginning  does  not  improve  by  length 
of  time. 

82.  Quod  remedio  destituitur  ipsa  re  valit  si  culpa  absit. 

That  which  is  without  remedy  avails  of  itself,  if  without  fault. 

83.  Quoties  in  verbis  nulla  est  ambiguitas,  ibi  nulla  expositio  contra  verba 

expressa  fienda  est. 
When  in  the  words  there  is  no  aml)iguity,  then  no  exposition  con- 
trary to  the  expressed  words  is  to  be  made. 


14  TABLE   OF    MAXIMS. 

SI.  Res  inter  alios  acta  altcri  nocere  non  debet. 

One  person  ought  not  to  be  injured  by  the  acts  of  others  to  which  he 
is  a  stranger. 

85.  Respondeat  superior. 
Let  the  principal  answer. 

86.  Rex  non  potest  peccare. 
The  king  can  do  no  wrong. 

87.  Rex  nunquam  moritur. 
The  king  never  dies. 

88.  Roy  n'est  lie  per  ascun  statute  si  il  ne  soit  expressement  nosme. 

The  king  is  not  bound  by  any  statute  if  he  be  not  expressly  named 
therein. 

89.  Salus  populi  suprema  lex. 

The  welfare  of  the  people,  or  of  the  public,  is  supreme  law. 

90.  Sic  utere  tuo  ut  alienum  non  laedas. 

So  use  your  own  property  as  not  to  injure  your  neighbor's. 

91.  Summa  ratio  est  quae  pro  religione  facit. 

The  highest  rule  of  conduct  is  that  which  is  induced  by  religion. 

92.  Ubi  eadem  ratio  ibi  idem  lex,  et  de  sitnilibus  idem  est  judicium. 
"Where  there  is  the  same  reason,  there  is  the  same  law. 

93.  Ubi  jus  ibi  remedium. 

Where  there  is  a  right  there  is  a  remedy. 

94.  Utile  per  inutile  non  vitiatur. 

That  which  is  useful  is  not  rendered  useless  by  that  which  is  useless. 

95.  Verba  chartarum  fortius  accipiuntur  contra  proferentem. 

The  words  of  deeds  are  to  be  taken  most  strongly  against  him  who 
uses  them. 

96.  Verba  generalia  restringuntur  ad   habilitatem   rei  vel  aptitudinem 

personse. 
General  words  are  restrained  according  to  the  nature  of  the  thing  or 
of  the  person. 

97.  Verba  relata  hoc  maxime  operantur  per  referentiam  ut  in  eis  in  esse 

videntur. 
Words  to  which  reference  is  made  in  an  instrument  have  the  same 
effect  and  operation  as  if  they  were  inserted  in  the  instrument  re- 
ferring to  them. 

98.  Vigilantibus,  et  non  dormientibus,  jura  subveniunt. 
The  vigilant,  and  not  the  sleepy,  are  assisted  by  the  laws. 

99.  Volenti  non  fit  injuria. 

That  to  which  a  man  consents  cannot  be  considered  an  injury. 
100.  Voluntas  reputabatur  pro  facto. 

The  will  is  to  be  taken  for  the  deed. 


PART  I. 
ONE    HUNDRED    MAXIMS, 

WITH 

OBSERVATIONS  AND  CASES. 


MAXIM  I. 


Accessoriiim  non  ducit,  sed  sequitur  suiim  princi2)ale  :  (Co. 

Litt.  152.) 
The  accessory  does  not  lead,  but  follows  its  principal. 

THIS  maxim  may  be  also  translated,  "The  incident  shall 
pass  by  tlie  grant  of  the  principal,  but  not  the  principal  by 
the  grant  of  the  incident ; "  and  may  be  illustrated,  in  both  neg- 
ative and  affirmative,  by  the  following  examples  : — Eent  is  in- 
cident to  the  reversion,  and  by  a  grant  of  the  reversion  the  rent 
will  pass,  though  by  a  grant  of  the  rent  the  reversion  will  not  pass. 
So,  with  a  manor,  the  court  baron  will  pass ;  with  a  mansion- 
house,  all  those  things  appurtenant,  necessary  for  its  enjoyment 
as  such,  will  pass.  But  those  things  which  are  only  appendant 
by  continual  enjoyment  with  others,  as  warrens,  leets,  waifs, 
estrays,  and  the  like,  will  not  so  pass,  without  express  words, 
or  general  words  showing  an  intention ;  as  "  cum  pertinentiis." 
And  so  it  is  in  similar  cases ;  as,  covenants  running  with  the 
land ;  the  obligations  resulting  from  contracts ;  the  consequences 
resulting  from  causes  allowed  by  law,  and  which  are  all  refer- 
able to  this  maxim,  A  familiar  instance  of  the  application  of 
the  maxim  is,  where  A.  requires  a  chattel  to  be  repaired,  or 
made  from  material  to  be  provided  by  himself,  and  employs  B. 
to  do  the  work ;  in  this  case  the  labor  used  in  the  repair  or  in  the 
manufacture  of  the  chattel  is  merged  into  it,  and  thus  forms 
part  of  it,  and  belongs  to  A.,  and  B.  has  only  a  claim  for  the 
labor  bestowed  upon  it.  It  has  also  been  held  that  where  there 
is  a  sale  of  realty  and  personalty  in  one  indivisible  contract,  as 
of  a  house  and  furniture,  the  property  in  the  furniture  will  not 
pass  until  a  conveyance  of  the  house  has  been  executed. 

The  principal  object  or  thing  is  called  7'es  prifwipalis,  the 

accessory,  i^es  aeeessoria,  and  these  terms  apply  equally  to  things 

corporeal  as  to  things  incorporeal,  to  rights  incident  to  property 

as  to  property  itself ;  each  principal  having  its  incident,  and 

2 


18  LEGAL     MAXIMS. 

eacli  incident  its  principal.  It  follows  also  of  course  that  where 
the  principal  ceases,  or  is  destroyed,  the  accessory  also  ceases,  or 
is  destroyed :  as  where  a  less  estate  being  created  out  of  a 
greater  and  the  greater  is  destroyed  or  determined,  the  destruc- 
tion or  determination  of  the  greater  estate  draws  with  it  the 
destruction  or  determination  of  the  less.  So  in  the  case  of  a 
lessee  or  other  person  having  a  limited  determinable  estate,  and 
granting  an  interest  out  of  it,  the  determination  of  such  his 
limited  or  determinable  estate,  whether  by  effluxion  of  time, 
breach  of  condition,  or  otherwise,  will  draw  with  it,  so  as  to 
determine,  the  interest  so  granted  out  of  it.  All  rights  and 
privileges  carry  with  them  corresponding  obligations,  and  the 
right  or  privilege  ceasing  the  obligation  ceases  also,  as  the  acces- 
sory on  the  destruction  of  the  principal.  There  is,  however,  no 
obligation  without  a  right,  as  there  is  no  accessory  without  a 
principal.  The  law  confers  many  privileges  upon  corporate 
bodies  and  individuals,  in  their  public  and  private  relation  to 
society,  but  to  all  such  privileges  there  are  corresponding  con- 
ditions annexed,  which  conditions  follow  the  privileges  as  the 
accessory  follows  the  principal. 

An  exception  to  this  rule  exists  in  the  case  of  a  surrender 
of  a  lease  for  the  purjDOse  of  taking  a  renewal,  in  which  case, 
the  reversion  of  an  under-lease,  if  there  be  one,  being  gone,  the 
under-lease  does  not  thereby  become  extinguished,  but  the  lessee 
has  all  the  same  remedies  against  the  under-lessee  for  rents, 
covenants,  and  duties,  as  if  the  original  lease  had  been  still 
kept  on  foot ;  and  the  rights  of  the  original  lessor  are  also  pre- 
served so  far  as  the  rents  and  covenants  in  the  new  lease  exceed 
not  those  of  the  old. 


Co.  Litt.  132;  Shepp.  Touch.  89^  Harding  v.  Pollock,  6  Bing.  63; 
Channell  v.  Robotham,  Yelv.  68 ;  Wood  v.  Bell,  6  Ell.  &  Bl.  361  ;  Goode 
V.  Burton,  1  Esch.  189  ;  Hollis  v.  Palmer,  3  Bing.  K  C.  713;  Florence  v. 
Drayson,  1  C.  B.  N.  S.  584 ;  Florence  v.  Jennings,  3  lb.  454  ;  4  Geo.  2,  c. 
28,  s.  6 ;  Lanyon  r.  Toogood,  18  M.  &  W.  29  ;  Clarke  i).  Spence,  4  Ad.  & 
El,  470  ;  Carruthers  v.  Payne,  2  M.  &  P.  441. 


MAXIM  II. 


Actio  2)ersonaUs  moritur  cum  iiersona  :  (Noy  Max.  14.) 
A  ijersonal  right  of  action  dies  witli  the  person. 

THE  personal  right  of  action  intended  by  this  maxim  is  that 
right  of  action  which  a  person  has  for  some  wrong  done  to 
his  person,  or,  which  one  has  against  another  for  breach  of  con- 
tract to  do  some  personal  service,  that  is,  service  depending 
upon  personal  skill ;  and,  strictly  speaking,  it  is  in  tort  only, 
and  not  in  contract.  Where,  however,  the  right  of  action  arises 
out  of  injury  to  the  personal  property  of  the  person  dying,  the 
maxim  does  not  apply,  and  his  personal  representatives  may 
therefore  suein  respect  of  such  right  of  action  ;  as,  for  breaches 
of  contracts  which  are  an  injury  to  his  personal  estate ;  bond 
and  other  debts,  and,  indeed,  all  contracts  not  coming  within 
the  meaning  of  a  personal  right  of  action  arising  out  of  the 
breach  of  a  personal  contract  as  above  defined.  For  instance, 
when  a  vendor  omits  to  make  out  a  good  title  within  a  time  stip- 
ulated by  the  contract  of  sale,  and  the  vendee  dies,  his  executors 
may  sue  for  damage  incurred  by  loss  of  interest  on  the  deposit 
money  and  the  expense  of  investigating  the  title.  So  the  ex- 
ecutor of  a  tenant  for  life  may  recover  for  the  breach  of  a 
covenant  to  repair  committed  by  the  lessee  of  the  testator  in 
his  lifetime. 

Statutory  provision  has  also  been  recently  made  for  the  re- 
covery within  a  limited  period  after  the  death  of  the  person 
whose  property  is  injured,  of  compensation  for  injury  to  real 
property  committed  witliin  a  limited  period  before  the  death  of 
such  person,  and  also  more  recently,  for  compensation  in  case  of 
death  by  the  wrongful  act,  neglect,  or  default  of  another,  where 
the  act,  neglect,  or  default  is  such  as,  if  death  had  not  ensued, 
the  party  dying  would  have  been  entitled  to  maintain  an  action 
for  damages  in  respect  thereof,  and  in  which  case  also,  as  in  that 


20  LEGAL    MAXIMS. 

first  mentioned,  the  action  must  be  brouglit  within  a  limited 
time  after  the  death  in  respect  of  which  the  action  is  brought. 
A  recent  case  shows  that  this  maxim  is  not  rendered  inoperative 
by  the  Common  Law  Procedure  Act  1852,  by  which  Act,  on 
the  death  of  a  plaintiif,  his  representatives  may,  by  entering  a 
suggestion,  proceed  with  the  action ;  but  that,  on  the  death  of 
a  plaintiff,  during  the  progress  of  an  action  for  personal  injury, 
his  representatives  cannot  proceed  with  the  action ;  that  Act 
only  applying  to  those  cases  where,  before  the  Act,  the  cause 
of  action  would  have  survived  to  the  personal  representative, 
and  he  could  have  commenced  an  action  in  his  representative 
capacity.  Formerly,  where  damage  of  a  temporary  nature,  and 
accruing  wholly  in  the  lifetime  of  the  testator,  was  done  to  real 
property,  neither  the  heir  nor  personal  representative  could  sue 
in  respect  of  it :  the  heir,  because  it  was  personal  estate,  and 
the  personal  representative  by  reason  of  this  maxim,  but  now 
this  inconvenience  is  remedied  by  statute  as  before  mentioned. 
So,  also,  executors  could  not  sue  in  respect  of  any  detention  or 
conversion  of  the  personal  property  of  the  testator  in  his  life- 
time, but  that  was  remedied  also  by  statute. 

With  the  exception  of  the  instance  above  mentioned  result- 
ing in  the  death  of  the  party,  the  rule  in  strictness  still  applies, 
and  no  action  can  be  maintained  by  the  personal  representatives 
of  the  deceased  in  resj)ect  of  a  strictly  personal  tortious  right 
of  action ;  as,  for  assault,  false  imprisonment,  or  other  personal 
injury,  libel,  negligence,  &c. 

The  right  which  a  husband  has  to  the  choses  in  action  of  his 
wife,  may  properly  be  considered  within  this  rule  as  being  a 
personal  right  of  action  dying  with  him,  and  which,  if  not 
reduced  into  possession  during  coverture,  survives  to  the  wife. 


Noy  Max.  14  ;  Orme  v.  Broughton,  10  Bing.  533  ;  Ricketts  v.  Weaver, 
13  M.  &  W.  718;  Raymond  v.  Fitch,  3  C.  M.  &  R.  588;  Adam  v.  Bristol, 
3  Ad.  &  El.  389;  Flureau  v.  Thornhill,  3  W.  Bl.  1078;  4  Edw.  3,  c.  7; 
35  Edw.  3,  c.  5 ;  3  &  4  Will.  4,  c.  43,  s.  3  ;  9  &  10  Vic.  c.  93,  s.  1 ;  G.  L.  P. 
A.  1852  ;  Chamberlaine  v.  Drumgoole,  13  Ir.  Com.  L.  Rep.  1  App. ;  Knight 
V.  Quarles,  4  Moore,  541 ;  Flirm  v.  Perkins,  33  L.  J.  10,  Q.  B. 


MAXIM  III. 


Actus  curifs  neminem  gravaMt :  (Jenk.  Ceut.  118.) 
An  act  of  the  court  injures  no  one. 

WHEEE  tliis  rule  can  be  made  to  apply  to  any  loss  or  in- 
jury to  tlie  party,  through  delay  or  otherwise  on  the 
part  of  the  court,  and  it  is  in  the  power  of  the  court  to  rem- 
edy the  evil,  it  will  be  done  ;  but  there  are  many  cases  in 
which  error  and  delay  on  the  part  of  the  court  and  its  officers 
produce  injury  and  loss  to  one  or  other  of  the  parties  which 
the  court  cannot,  nor  will  not,  compensate. 

Where  the  time  has  gone  by  for  entering  up  judgment 
through  the  delay  of  the  court,  judgment  will  be  ordered  to 
be  entered  up  7iunc  pro  tunc,  that  is,  the  proceeding  in  ques- 
tion may  be  taken  now,  instead  of  at  the  time  when  it  would 
have  been  taken  but  for  default  of  the  court,  for  the  conven- 
ience of  the  court,  through  press  of  business,  taking  time  to 
deliberate  on  its  judgment,  death  of  the  party,  or  other  like 
cause ;  as  where  a  defendant  dies  pending  the  argument  on  a 
point  reserved  on  which  judgment  of  nonsuit  is  afterwards 
given,  his  representatives  are  entitled,  upon  application  to  the 
court,  to  enter  up  the  judgment  of  the  term  next  after  the 
trial,  that  they  may  get  the  costs  of  the  nonsuit.  But  if  it 
were  by  laches  of  the  plaintiff,  or  those  representing  him,  or 
by  reason  of  any  proceeding  in  the  ordinary  course  of  law, 
that  judgment  was  not  entered  up,  the  court  will  not  interfere 
under  this  rule.  Judgment  will  in  some  extraordinary  cases 
be  allowed  to  be  entered  mine  ])ro  tunc  where  the  default  is 
not  that  of  the  court ;  it  is,  however,  only  in  very  rare  cases. 
And  therefore,  w^here,  on  a  verdict  for  the  plaintiff  subject  to 
a  reference  at  the  Spring  Assizes,  1851,  and  an  award  in  her 
favor  in  Trinity  Term  following,  she  having  died  on  tlie  22d 
of   November,  and  her  will  being  taken  out  of  the  j)roper 


22  LEGAL    MAXIMS. 

office  on  the  3d  December,  to  be  proved  to  enable  her  ex- 
ecutrix to  sign  judgment,  but  in  consequence  of  a  caveat  en- 
tered by  the  defendant,  probate  was  not  obtained  until  the  Gth 
May,  1852 ;  the  executrix  having  moved  for  leave  to  enter 
up  judgment  as  of  Michaelmas  Term,  1851,  it  was  refused, 
the  delay  not  being  attributable  to  any  act  of  the  court, 
though  it  was  admitted  by  the  court  to  be  a  hard  case.  Also, 
where  a  judge's  order  was  made  a  stay  of  proceedings  on  a 
day  named,  on  payment  of  debts  and  costs,  the  plaintiff  hav- 
ing liberty  to  sign  judgment  if  the  costs  were  not  paid,  and 
the  plaintiff  having  died  before  the  day  named,  it  was  held 
that  judgment  could  not  be  entered  nunc  pro  tunc.  Nor,  even 
where  the  fault  appeared  to  be  that  of  the  officer  in  the  mas- 
ter's office,  in  delaying  the  judgment,  it  not  appearing  that  the 
officer  had  refused  to  sign  judgment.  The  principle  governing 
the  court  in  allowing  judgment  to  be  entered  nunc  pro  tunc, 
is  upon  the  assumption  that  the  party  was  in  a  condition,  at 
the  time  as  of  which  it  is  proposed  the  judgment  should  be 
entered,  to  claim  the  decision  of  the  court,  the  court  not  hav- 
ing jurisdiction  otherwise  to  order  judgment  to  be  so  entered. 
Amongst  the  cases  where  the  error  or  delay  is  that  of  the 
court,  and  whereby  loss  and  injury  are  occasioned  to  the 
parties,  and  in  which,  nevertheless,  the  court  will  not  in- 
terfere to  assist,  are  such  as  where,  from  want  of  proper 
arrangements  as  to  time,  causes  are  made  remanets,  or  re- 
ferred to  arbitration,  where  some  officer  neglects  his  duty, 
where  there  is  no  appeal  from  the  decision  of  the  court  or 
judge,  and  in  many  of  those  cases  where  the  maxim,  ''  omnia 
praesumuntur  rite  esse  acta,"  is   said,  though   improperly,  to 

apply- 

Jenk.  Cent.  118;  2  Wms.  Saund.  72;  Miles  v.  Bough,  0  Q.  B.  47; 
Lawrence  v.  Hodgson,  1  Y.  &  J.  368;  Freeman  v.  Tranali,  12  C.  B.  406; 
Toulmin  v.  Anderson,  1  Taunt.  384;  Copley  v.  Day,  4  Taunt.  702;  Green 
V.  Cobden,  4  Scott,  486;  Evans  i'.  Eces,  12  A.  &  E.  167;  Lanman  v. 
Audley,  2  M,  &  W.  535 ;  Jackson  «.  Carricgton,  4  Exch.  41 ;  Wilkins  ». 
Canty,  1  Dowl.  (N.  S.)  855  ;  Wilks  ».  Perks,  6  Sc.  K  K,  42 ;  Anon.  1  H.  & 
C.  664. 


MAXIM  IV. 


Actus  Dei  vel  legis  nemini  facit  wjuriam  :  (5  Co.  87.) 
The  act  of  God,  or  of  the  law,  is  ijrejiidicial  to  no  one. 

T  B  lITE  apportionment  of  rent  in  case  of  tlie  death  of  tlie 
-*-  lessor,  tenant  for  life,  or  in  tail,  before  tlie  rent  becomes 
payable  ;  as  also,  the  death  of  a  judgment  debtor  taken  in  ex- 
ecution ;  the  debt  not  being  thereby  discharged,  though  it 
would  have  been  otherwise  had  the  debtor  been  set  at  liberty 
by  the  judgment  creditor  himself,  may  be  given  to  illustrate 
the  first  part  of  this  maxim. 

Formerly,  where  any  lessor  or  landlord  having  only  an  es- 
tate for  life  in  the  lands  happened  to  die  before  or  on  the  day 
on  which  any  rent  was  reserved  or  made  payable,  such  rent,  or 
any  part  thereof,  was  not  recoverable  by  the  executors  or  ad- 
ministrators of  such  lessor  or  landlord,  nor  was  the  person  in 
reversion  entitled  thereto,  other  than  for  the  use  and  occupa- 
tion thereof,  from  the  death  of  the  tenant  for  life,  whereby  the 
under-tenants  avoided  payment ;  but  now,  where  any  tenant 
for  life  shall  die  before  or  on  the  day  on  which  any  rent  is  re- 
served or  made  payable  upon  any  demise  or  lease  of  any  lands, 
tenements,  or  hereditaments  which  determined  on  the  death 
of  such  tenant  for  life,  his  executors  or  administrators  may  re- 
cover from  such  under-tenant,  if  such  under-tenant  for  life  die 
on  the  day  on  which  the  same  was  payable,  the  whole,  or,  if  be- 
fore such  day,  a  proportion  of  such  rent,  according  to  the  time 
such  tenant  for  life  lived  of  the  last  year,  or  portion  of  a  year, 
or  other  time  in  which  the  rent  was  growing  due.  But  wliere 
the  lease  made  by  the  tenant  for  life  does  not  determine  with 
his  death,  the  rent  is  not  apportioned  ;  as  where  it  is  made 
by  virtue  of  some  power. 

If  a  defendant  in  an  action  of  debt  die  in  execution,  the 
plaintiff  may  have  a  new  execution  by  elegit,  or  fieri  facias  /  and 


24  LEGAL    MAXIMS. 

that,  because  the  plaintiff  shall  not  be  prejudiced,  nor  the  de- 
fendant benefited,  bj  any  act  or  wrong  of  the  defendant,  in 
non-payment  of  the  debt,  when  no  default  is  in  the  plaintiff, 
he  having  followed  the  due  and  ordinary  course  of  law  ;  nor 
is  the  taking  of  the  body  a  satisfaction  of  the  debt,  but  merely 
a  pledge  for  its  satisfaction  ;  as  is  signified  by  the  words  of  the 
writ,  capms  ad  satisfaciendum.  The  death  of  the  defendant 
also  is  the  act  of  God,  which  shall  not  turn  to  the  prejudice 
of  the  plaintiff  of  his  execution,  which  is  the  act  of  the  law, 
and  which  does  no  wrong  to  any. 

So,  on  the  other  hand,  the  case  of  a  tenant  whose  house  is 
destroyed  by  fire  or  tempest,  though  he  is  not  discharged  from 
his  tenancy  to  the  injury  of  his  landlord,  yet,  he  is  not  bound 
to  rebuild  the  house,  to  the  injury  of  himself.  Unless  indeed 
there  be  a  covenant  or  agreement  on  his  part  to  repair  and 
keep  the  premises  in  repair,  in  which  case,  if  there  be  no  ex- 
ception in  case  of  fire,  tempest,  &c.,  he  will  have  to  rebuild  if 
the  premises  are  destroyed  by  fire  or  other  casualty.  He 
must,  however,  continue  to  pay  the  rent,  if  a  lessee,  to  the  end 
of  his  term  ;  or,  if  a  tenant  from  year  to  year,  until  he  de- 
termine the  tenancy  by  notice.  IS'either  is  the  landlord 
bound  to  rebuild  in  case  of  fire,  though  he  may  have  insured 
the  premises,  and  received  the  money  from  the  insurance 
ofiice.  Against  all  these  inconveniences  to  the  tenant,  he  must 
provide  by  special  stipulation  in  the  lease  or  agreement.  This, 
and  similar  cases,  will  show  the  application  of  the  second  part 
of  the  maxim. 


11  Geo.  2.  c.  19;  4  &  5  Will.  4,  c.  22;  5  Co.  87;  10  Co.  139;  Paget ». 
Gee,  Amb.  198;  Cage  v.  Actou,  1  Ld.  Raym.  515  ;  Cattley  v.  Arnold,  28 
L.  J.  352,  Ch. ;  Calland  v.  Troward,  2  H.  Bl.  324 ;  Symons  v.  Symons, 
Madd.  &  G.  207;  Nadin  v.  Battle,  5  East,  147;  Vernon  v.  Vernon,  2  Bro. 
C.  C.  659 ;  Digby  v.  Atkinson,  4  Camp.  275 ;  Bullock  v.  Dommitt,  6  T.  R. 
650 ;  Parker  i\  Gibbons,  1  Q.  B.  421  ;  Weignall  v.  Waters,  6  T.  R.  488 ; 
Leeds  v.  Cheetham,  1  Sim.  146;  Lofft  v.  Dennis,  28  L.  J.  168,  Q  B. 


MAXIM  V. 


Actus  non  facit  reum  nisi  mens  sit  rea  :  (3  Inst.  107.) 
The  act  itself  does  not  constitute  guilt  unless  done  with 
a  guilty  intent. 

THIS  maxim  lias  reference  chiefly  to  criminal  proceedings, 
and  ill  such  cases  it  is  the  rule  that  the  act  and  intent 
must  both  concur  to  constitute  a  crime ;  yet,  the  law  will 
sometimes  imply  the  intent  from  the  act,  under  the  maxim, 
"Acta  exteriora  indicant  interiora  secreta."  Tliose  cases  in 
which  the  law  will  imply  the  intent  from  the  act  are  where  an 
act  is  done  in  abuse  of  lawful  authority ;  as  where  a  man  hav- 
ing by  law  authority,  in  the  exercise  of  some  public  duty,  to 
enter  a  railway  station  or  other  public  building,  and,  being 
therein,  commits  a  felony,  it  will  be  presumed  that  he  entered 
the  premises  with  a  felonious  intent.  So,  of  a  sheriif  or  other 
public  officer  acting  in  excess  of  his  authority,  he  will,  in  re- 
spect of  such  excess,  and  upon  the  same  princij)le,  be  deemed 
a  trespasser  ah  hiitio.  So,  in  cases  where  the  act  done  is  posi- 
tively forbidden  by  exjDress  enactment  to  be  done,  the  inten- 
tion to  do  it  will  be  implied. 

The  crime  of  murder  furnishes  at  once  an  instance  in  illus- 
tration of  both  the  maxims  under  consideration ;  for  though, 
on  the  one  hand,  tlie  act  of  killing  does  not  of  itself  constitute 
the  guilt,  unless  done  with  a  guilty  intent,  yet  a  guilty  in- 
tent will  in  such  a  case  be  presumed. 

The  question  of  malicious  intent  forms,  also,  an  important 
feature  in  the  actions  of  libel  and  slander.  It  is  said,  "  the 
greater  the  truth  the  greater  the  libel ; "  meaning  that  the 
more  true  the  matter  published  is,  the  more  readily  it  Avill  be 
believed,  and  in  consequence,  the  more  defamatory  it  will  be ; 
and  that,  therefore,  tlie  mere  unauthorized  publication  of  a 
truth  reflecting  upon  a  man's  character  is  a  libel — yet,  the 


26  LEGAL    MAXIMS. 

written  or  printed  publication  of  tlie  libelous  matter  is  always 
attributed  to  a  malicious  intent  on  the  part  of  some  person  or 
other.  There  is  a  difference  between  libel  and  slander  in  this 
respect.  Generally  speaking,  libel  is  a  written  or  printed  pub- 
lication of  defamatory  matter ;  and  the  fact  of  writing  or 
printing  defamatory  matter  is  of  itself  a  sufficient  indication 
of  intention  on  the  part  of  the  writer  or  printer  that  it  shall 
go  to  the  world  for  as  much  as  it  is  worth ;  and  in  that  case 
the  malicious  intention  in  j^ublishing  must  be  taken  to  be  equal 
in  substance  to  the  libel ;  and  malicious  intention  in  such  case 
is  not  an  essential  ingredient  to  the  support  of  the  action.  In 
slander,  however,  the  words  used  are  frequently  the  mere  out- 
bursts of  a  hasty  temper,  and  tliough  slanderous  and  actionable 
if  spoken  with  a  malicious  intent,  yet,  without  the  malicious 
intent,  in  the  absence  of  special  damage,  they  are  not  actiona- 
ble, unless  indeed  the  w^ords  used  would  lead  the  bystanders  to 
infer  that  the  party  slandered  had  been  guilty  of  some  crimi- 
nal offense,  sed  quaere^  without  special  damage ;  in  which  case, 
as  in  that  of  libel,  the  intention  must  be  imj^lied. 

In  an  action  for  libel  against  a  railway  company,  it  was  held 
that  the  action  would  lie  if  malice  in  law  might  be  inferred 
from  the  publication  of  the  libelous  matter.  It  has  been  also 
held  that  to  convict  of  larceny  there  must  be  not  only  an  inten- 
tion to  commit  the  offense,  but  a  means  also  of  carrying  it  into 
effect.  Therefore,  where  a  man  put  his  hand  into  tlie  pocket 
of  another  with  intent  to  steal,  it  was  held  that  he  could  not 
be  convicted  of  an  attemjjt  to  steal  unless  there  appeared  to 
have  been  something  in  the  pocket  which  he  might  have 
stolen. 


3  Inst,  107 ;  Reg,  t).  Woodrow,  15  M.  &  W.  404  ;  Lee  v.  Simpson,  3  C.  B. 
871;  Clift  V.  Schwabe,  3  C.  B.  437  ;  O'Brian  ».  Clement,  15  M.  «&  W.  437; 
Barnett  t).  Allen,  31  L.  T.  217;  Reg.  «.  Collins,  10  L.  T.  (K  S.)  851; 
Hickinbotham  v.  Leech,  10  M.  &  W.  361 ;  Lynch  v.  Knight,  5  L.  T.  (N.S.) 
291  ;  Reg.  v.  Hore,  3  F.  &  F.  315 ;  Whitfield  v.  South-Eastern  Railway 
Company,  31  L.  T.  113;  George  v.  Goddard,  2  F.  &  F.  689;  TurnbuU  v. 
Bird,  3  F.  &  F.  508. 


MAXIM  VI. 


Ad  ea  qiice  frequentius  accidunt  jura  adaptantur  :  (2  iDst. 
137.) 

The  laws  are  adapted  to  those  cases  which  most  fre- 
quently occur. 

THE  meaning  of  tliis  maxim  is,  that  the  laws  are  to  be  so 
construed  as  that  tliey  may  be  made  to  adapt  tliemselves 
to  those  cases  which,  in  the  ordinary  transactions  of  the  world, 
most  frequently  occur,  in  preference  to  their  being  made  to 
adapt  themselves  to  any  isolated  or  individual  case.  The 
phrase,  "  so  far  as  the  same  is  applicable,"  now  so  common  in 
Acts  of  Parliament  where  forms  of  procedure  are  given,  re- 
quires the  aid  of  this  maxim  to  explain  its  meaning ;  it  is  evi- 
dently directed  to  those  cases  which  most  frequently  occur, 
and  will  not  be  permitted  to  be  altered  so  as  to  suit  every 
particular  case,  and  in  considering  it  the  courts  will  so  con- 
strue it. 

In  the  construction  of  all  public  general  Acts  of  Parlia- 
ment, also,  that  meaning  must  be  put  upon  them  whicli  is  ap- 
plicable to  cases  which  most  frequently  occur,  and  not  to  any 
particular  case ;  for  an  Act  of  Parliament  is  like  tlie  common 
law,  whicli  adapts  itself  to  the  general,  in  exclusion  of  the  par- 
ticular good,  and  is  construed  with  the  aid  of  the  common 
law.  The  Legislature  will  be  presumed  to  have  in  their  con- 
templation those  cases  which  most  frequently  occur,  and  a 
statute  will  be  so  construed.  So  where  in  an  Act  of  l*arlia- 
ment  there  is  given  the  form  of  an  indorsement  to  be  put  upon 
a  writ  of  summons,  which  by  construction  of  the  statute  was 
intended  to  apply  to  all  cases  alike,  and,  there  being  a  blank  in 
such  indorsement,  the  court  ordered  it  to  be  filled  up  so  as  to 
be  generally  applicable.  Private  statutes,  however,  are  not  so 
construed  ;  they  are  construed  strictly,  and  conlined  to  the 


28  LEGAL     MAXIMS. 

particular  object  for  which  they  were  made  appearing  upon 
the  face  of  them,  as  an  ordinary  deed  inter  partes.  Thus, 
where  a  private  Act  of  Parliament  entitled  "  An  Act  to  ena- 
ble a  certain  insurance  society  to  sue  and  be  sued  in  the  name 
of  their  secretary,"  enacted  that  they  might  commence  all  ac- 
tions and  suits  in  his  name  as  nominal  plaintiff ;  it  was  held 
that  tliat  did  not  enable  the  secretary  to  petition  on  behalf  of 
the  society  for  a  commission  in  bankruptcy  against  tlieir  debt- 
or ;  tlie  expression  "  to  sue,"  generally  speaking,  meaning  to 
bring  actions,  and  was  not  applicable  to  a  commission  in  bank- 
ruptcy, which  would  have  been  mentioned  if  intended. 

Though  this  maxim  may  be  strictly  true  as  regards  the  laws 
of  this  country,  if  the  meaning  be  that  they  are  to  be  so  con- 
strued as  that  they  may  be  made  to  adapt  themselves  to  such 
cases  in  preference  to  their  being  made  to  adapt  them- 
selves to  any  isolated  or  individual  cases,  and  the  reference  be 
to  public  general  statutes  merely,  and  not  to  local  or  personal ; 
yet  the  laws  of  this  country  are  by  no  means  perfect  specimens 
of  general  adaptation.  They  seem  rather  to  be  made  for  each 
individual  case  as  it  arises ;  and,  indeed,  the  moment  a  case  oc- 
curs suggestive  of  legislative  enactment,  a  law  is  made  to  meet 
it,  wliether  it  be  at  the  will  of  a  private  person,  a  public  body, 
or  the  public.  Most  of  our  public  general  statutes  are,  how- 
ever, of  general  application,  and  are  made  to  apply  to  those 
cases  which  are  likely  most  frequently  to  occur ;  as  statutes 
directed  against  crimes  and  misdemeanors. 

Taking  the  maxim  to  mean  that  laws  are  to  be  construed  so 
as  to  give  them  the  widest  general  aj^plication,  it  applies  to  all 
those  cases  where  the  words  used  have  both  a  particular  and  a 
general  signification,  when  that  construction  having  general 
application  will  be  adoj)ted,  unless  manifestly  unreasonable  and 
inconsistent. 


2  Inst.  137  ;  18  &  19  Vict.  c.  67;  Vnugh.  R.  373  ;  Wing.  Max.  216, 
71G  ;  Twiss  v.  Massey,  1  Atk,  67;  Ex  parte  Freeman,  1  V.  &  B.  41 ;  Guth- 
rie V.  Fish,  3  B.  &  C.  178;  Williams  v.  Roberts,  7  Exch.  628;  Miller  v. 
Solomons,  7  Exch.  549;  Robinson  v.  Cotterell,  11  Exch.  477;  Hall  v. 
Coates,  11  Exch.  481. 


MAXIM  VII. 


Ad  qucesiionem  facti  non  respondent  jiulices — Ad  qumstionein 
juris  non  respondent  juratores :  (Co.  Litt.  295.) 

To  questions  of  fact  judges  do  not  answer — To  questions 
of  law  the  jury  do  not  answer. 

1\ /TATTERS  of  fact  are  tried  by  jurors,  matters  of  law  by 
-^'-■-  the  judges,  and  tlie  duty  of  the  jurors  is  to  find  the  truth 
of  the  fact,  and  to  leave  the  decision  of  tlie  law  to  the  judges. 

If,  in  the  trial  of  an  issue,  the  issue  to  be  tried  be  one  of  fact 
only,  it  is  to  be  decided  by  the  jury  ;  if  of  law,  by  the  judge. 
In  the  trial  of  an  action  at  law,  though  the  issue  joined  is  one 
of  fact  for  the  jury  to  decide  or  to  find  ;  yet  it  is  for  the  judge  to 
determine  the  law,  upon  that  finding,  and  this  he  eitlier  does 
at  the  trial ;  or,  if  a  difficult  point  of  law  arise,  leaves  to  be 
done  by  the  court  above  upon  a  general  verdict,  subject  to  a 
special  case,  stating  tlie  facts  for  the  consideration  of  the  court. 

In  the  trial  of  an  action,  mixed  questions  of  law  and  fact 
frequently  arise ;  as  upon  a  contract,  either  by  parol  or  in 
writing,  in  which  case  the  jury  find  the  existence  of  tlie  con- 
tract and  the  nature  of  it,  and  the  judge  determines  the  con- 
struction in  law  to  be  put  upon  such  contract. 

In  some  cases  a  jury  may  be  said  to  exercise  the  ofiice  of 
both  judge  and  jury  ;  as,  when  they  are  directed  as  to  the  law 
by  the  judge,  but,  in  giving  their  verdict,  misapply  it,  whether 
from  willfulness  or  misapprehension. 

Though  the  jury  are  judges  of  the  facts  upon  which  depend 
the  main  issue  in  question,  yet  they  are  not  to  determine  all 
facts  arising  incidentally  during  the  trial  of  a  cause  ;  as,  for  in- 
stance, on  a  question  as  to  the  admissibility  of  evidence,  the 
consideration  of  the  facts  relating  thereto,  and  the  rejection 
and  reception  thereof,  are  matters  altogether  within  the  prov- 
ince of  the  judge.     In  practice,  on  a  trial  at  Nisi  Prius,  after 


30  LEGAL     MAXIMS. 

the  evidence  is  closed,  the  judge  states  to  the  jury,  for  their 
information  and  guidance,  tlie  question  really  in  dispute  be- 
tween the  parties,  and  directs  their  attention  to  tlie  evidence  ; 
and  wlien  a  question  of  law  is  mixed  up  with  tlie  facts,  he 
states  and  explains  to  them  the  principles  of  law  governing  the 
case,  and  by  which  it  must  be  decided  ;  but  he  does  not  inter- 
fere further  with  what  may  be  considered  the  province  of  the 
jury,  and  he  only  goes  so  far  as  has  been  stated,  when  he  con- 
siders it  necessary  to  prevent  a  failure  of  justice. 

Recent  legislation  has  made  great  inroads  into  tliis  old 
maxim,  by  giving  to  judges  of  the  county  courts,  and  of  the 
superior  courts,  power  to  decide  matters  of  fact,  as  well  as  of 
law,  without  the  intervention  of  a  jury ;  in  some  cases  with, 
and  in  otliers  without,  the  consent  of  the  parties.  Courts  of 
equity,  as  well  as  courts  of  law,  have  also  now  the  power  of 
determining  matters  of  fact  by  means  of  a  jury,  without  di- 
recting an  issue  to  be  tried  by  a  court  of  law  as  formerly,  the 
functions  of  the  equity  judge  and  jury  being  in  such  cases 
somewhat  similar  to  those  at  law.  Courts  of  equity,  however, 
do  not  seem  of  a  construction  suitable  to  the  adoption  gener- 
ally of  trial  by  a  jury  ;  but  only  in  those  cases  where  a  plain 
question  of  fact  has  to  be  determined ;  for,  equity  judges  are 
themselves,  in  general,  judges  of  the  facts  and  of  their  appli- 
cation to  the  law,  and  of  the  application  of  the  law  to  them  on 
the  evidence  brought  before  them  ;  and  are  well  able  legally 
and  equitably  to  determine  the  facts  upon  the  evidence,  and  to 
apply  the  law,  as  equitably  administered  by  them,  to  the  facts. 
But,  out  of  deference  to  the  old  institution  of  trial  by  jury,  a 
matter  arising  in  pais  must  still  be  determined  in  pais. 


Co.  Litt.  125,  225,  226,  295:  8  Co.  308;  9  Co.  13;  10  Co.  92;  3  Bla. 
Com. ;  Elliott  v.  South  Devon  Railway  Company,  2  Excli.  725 ;  Bartlett  v. 
Smith,  11  M.  &  W.  486;  Panton  v.  Williams,  2  Q.  B.  169;  Doe  v.  Lewis, 
1  Burr.  617 ;  Gibson  v.  Overbiiry,  7  M.  «&  W.  555  ;  Fryer  v.  Coombes,  3 
Q.  B.  587  ;  Davidson  v.  Stanley,  3  Sc.  N.  R.  49;  Medleys.  Smith,  6  Moore, 
53;  Baylis  v.  Lawrence,  11  A.  &  E.  920;  Doe  «.  Crisp,  8  A.  &  E.  779; 
Heslop  v.  Chapman,  23  L.  J.  52,  Q.  B. 


MAXIM  VIII. 


Alienatio  reiprafertiirjuri  accrescendi  :  (Co.  Litt.  185.) 
Alienation  is  favored  by  the  law  rather  than  accumula- 
tion. 

'  ESTRICTIOi^r  on  alienation  is  a  badge  of  feudalism,  and 
was  introduced  into  this  country  under  William  I.  It 
was  the  ruling  principle  of  his  government  that  the  king 
should  be  supreme  lord  of  all  land,  and  that  all  land  should  be 
holden  of  him  in  return  for  services  to  be  rendered  to  him. 
This  was  at  that  time  the  nature  of  the  tenure  of  land  in  Kor- 
mandy,  with  which  William  I.,  as  Duke  of  Normandy,  and  his 
followers,  were  well  acquainted,  and  which  they  introduced 
here  in  order  to  give  them  that  absolute  territorial  power  and 
those  military  advantages  which  they  had  in  their  own  coun- 
try, and  which,  in  fact,  they  did  thereby  obtain  in  this.  The 
possession  of  the  whole  kingdom  was  that  of  the  monarch  as 
military  chief,  and  the  division  of  the  land  amongst  his  soldiers 
was  the  pay  which  they  received  for  their  personal  services, 
they  still  holding  the  land  under  their  monarch  as  chief.  This 
order  of  government  William  so  strictly  carried  out  that  he  re- 
quired all  the  landowners  in  the  kingdom,  as  well  tliose 
holding  in  capite  (or  immediately  from  him)  as  the  under-ten- 
ants (or  those  holding  under  his  nobles),  to  take  an  oath  of 
fealty  to  him  in  respect  of  such  lands,  and  which  was  done  at 
Salisbury  in  1086,  upon  the  occasion  of  the  compilation  of 
what  is  called  the  "  Doomsday  Book,"  and  towards  the  close  of 
his  reign.  Alienation,  strictly  so  called,  under  a  tenure  such 
as  this  was  impossible  ;  but  suhhifeudations  or  suhteiiures  were 
permitted — the  sub-tenant  holding  from  the  tenant  in  cajnte, 
who  in  his  turn  held  from  the  sovereign.  From  the  time  of 
the  Conquest  many  statutes  have  been  passed,  beginning  with 
Magna  Charta,  having  a  tendency  to  encourage  alienation,  un- 


3^  LEGAL    MA  XIM_S. 

til  at  length  the  law  became  what  it  now  is,  and  as  represent- 
ed by  this  maxim.  So  that,  instead  of  there  now  being  stat- 
utes restricting  alienation,  there  are  statutes  preventing  the 
restriction  of  alienation  of  real  estate,  and  preventing  the  ac- 
cumulation of  personal  estate  ;  real  estate  being  inalienable  for 
a  longer  period  than  for  a  life  or  lives  in  being  and  twenty-one 
years  afterwards,  and  the  accumulation  of  personal  estate  being 
restricted  to  a  life  or  lives  in  being,  or  twenty-one  years. 

The  restrictions  upon  alienation  under  the  feudal  system 
applied  as  well  to  alienation  by  will  as  by  deed  or  other  act 
inter  vivos,  and  continued  so  until  so  late  a  period  as  the  reign 
of  Henry  YIII.,  by  several  Acts  in  whose  reign  the  right  of 
alienation  of  lands  and  other  hereditaments,  with  some  excep- 
tions, was  first  granted  ;  since  which  time,  by  various  statutes, 
ending  with  the  1  Yict.  c.  26,  the  alienation  of  all  real  and  per- 
sonal estate,  including  customary  freeholds  and  copyholds,  has 
become,  and  is  now,  excepting  in  cases  of  disability,  without 
restriction. 

The  law  merchant  may  be  adduced  as  showing  the  desire  in 
the  present  day  to  remove  all  restrictions  upon  alienation  of 
personal  estate  by  the  facilities  which  are  given  thereby  to  the 
transfer  of  commercial  property  and  the  negotiation  of  mer- 
cantile securities.  And  so  great  is  the  desire  to  encourage  the 
sale  and  transfer  of  land,  that  it  is  sought,  by  legislative  enact- 
ment, to  make  such  transfer  as  simple  as  is  the  transfer  of 
Government  stock — that  is,  by  mere  certificate.  It  is  also  pro- 
posed to  make  choses  in  action  assignable  at  law,  and  to  re- 
move equitable  restrictions  to  the  assignment  of  reversionary 
interests. 


Co.  Litt.  1,  185,  376 ;  10  Co.  35 ;  Thellusson  «.  Woodford,  11  Ves.  jun. 
113,  149  ;  Cadell  v.  Palmer,  10  Bing.  140  ;  3  Bla.  Com. ;  Williams'  Real 
and  Personal  Property;  18  Edw.  1,  stat.  1,  c.  1  ;  32  Hen.  8,  c.  36;  29  Car. 
2,  c.  3  ;  39  &  40  Geo.  3,  c.  98 ;  3  &  4  Will.  4,  c.  74 ;  7  Will.  4  &  1  Vict, 
c.  26 ;  8  «fc  9  Vict.  c.  106 ;  20  &  21  Vict.  c.  57 ;  Spencer  and  others  v.  The 
Duke  of  Marlborough,  3  Bro.  P.  C.  232;  Tullett «.  Armstrong,  4  My.  & 
Cr.  377 ;  Fowler  v.  Fowler,  10  L.  T.  (N.  B.)  682. 


MAXIM  IX. 


Allegans  contra/ria  non  est  audiendus :  (Jenk.  Cent.  16.) 
Contrary  allegations  are  not  to  be  beard. 

"WITNESS  will  not  be  allowed  to  contradict  himseK,  nor 
a  party  to  contradict  liis  own  witness :  a  landlord  dis- 
training shall  not  be  allowed  to  deny  that  a  tenancy  existed ; 
nor  shall  a  tenant  dispute  his  landlord's  title. 

It  is  upon  this  principle  that  a  notice  to  qnit  by  either  land- 
lord or  tenant  cannot  be  waived  but  by  some  act  by  both  par- 
ties, differing  in  this  respect  from  a  waiver  of  forfeiture  of  a 
lease  or  other  interest  in  land  by  breach  of  covenant,  which  the 
lessor  alone  may  do  without  the  concurrence  of  the  lessee.  And 
so  it  is  that  the  receipt  by  the  lessor,  after  breach  of  covenant 
by  the  lessee,  of  rent  accruing  due  after  breach  is  a  waiver  of  a 
forfeiture  then  known  to  him,  notwithstanding  that  he  may  at 
the  time  protest  against  its  being  such  waiver.  So,  if  a  land- 
lord receive  or  distrain  for  rent  accruing  due  after  the  expira- 
tion of  notice  to  quit,  it  is  a  waiver  of  the  notice ;  though,  a 
demand  of  rent  without  actual  receipt  is  not  necessarily  so,  but 
it  is  in  such  case  a  question  of  intention.  It  is  in  accordance 
with  this  principle,  also,  that  in  legal  jDroceedings  a  party  can.- 
not  take  advantage  of  an  irregularity  of  his  opponent  after 
having  himself  taken  another  step  in  the  cause ;  that  he  is 
estopped  from  denying  his  own  deed,  or  setting  up  another 
deed  inconsistent  with  it ;  that  he  is  estoj)ped  from  denying 
the  authority  of  his  servants,  agents  and  others,  to  do  such  acts 
as  the  law  presumes  such  persons  to  have  authority  to  do.  The 
law  presumes  a  man  to  intend  the  natural  or  ordinary  conse- 
quences of  his  acts,  and  he  will  not  be  permitted  to  allege  the 
contrary  where  the  interests  of  a  third  party  or  the  public  are 
concerned ;  and  this  applies  negatively  as  well  as  affirmatively ; 
3 


34  L  E  G  A  L    M  A  X  I M  S . 

for,  a  man  standing  by  without  objecting  will  be  considered  as 
consenting,  and  will  not  be  allowed  to  allege  to  the  contrary. 

The  action  of  trover  furnishes  a  simple  instance  of  the  ap- 
plication of  the  maxim.  A  man  cannot  recover  in  trover  and 
also  in  debt  for  goods  and  for  the  price  for  which  they  have 
been  sold,  for  in  suing  for  the  price  of  the  goods  he  consents 
to  the  conversion,  and  the  count  in  trover  fails ;  he  cannot  ex- 
pect to  have  both  the  money  and  goods.  So  a  verdict  in  trover 
is  a  bar  to  an  action  for  money  had  and  received  brought  for 
the  value  of  the  same  goods.  So  a  judgment  in  trespass,  in 
which  the  right  of  property  is  determined,  is  a  bar  in  an  action 
of  trover  for  the  same  taking. 

So  the  doctrine  of  estoppel  furnishes  many  like  instances. 
A  recital  in  a  deed  is  evidence  against  the  party  executing  it 
of  the  matters  therein  recited,  and  is  a  bar  to  an  action  on  the 
deed  in  respect  of  such  recited  matters,  if  pleaded.  A  recital 
in  a  bill  of  sale  by  the  sheriff  of  the  writ  of  execution  and  of 
the  seizure  and  sale  of  the  goods  levied  is  evidence  against  him 
of  those  facts.  An  admission  on  the  record  in  an  action  be- 
tween the  same  parties  is  conclusive  evidence  against  them,  and 
need  not  be  proved,  and  cannot  be  disproved.  A  misrepresen- 
tation by  the  ]3laintiff  of  the  property  or  ownership  in  goods, 
whereby  the  defendant  is  deceived,  precludes  the  plaintiff  from 
denying  such  property  or  ownership  in  an  action  respecting  the 
same  goods — he  being  estopped  by  his  willful  misstatement 
from  disputing  a  state  of  facts  upon  the  faith  of  which  another 
has  been  induced  to  act  to  his  prejudice. 


Jenk.  Cent.  16 ;  Com.  Dig.  Ev.  (B  5) ;  Com.  Dig.  Action  (K  3) ;  Shaw 
c.  Picton,  4  B.  &  C.  729;  Evans  v.  Oglevie,  2  Y.  &  J.  79;  Wood  v.  Dwar- 
ris,  11  Exch.  501;  Taylor  v.  Best,  14  C.  B.  487;  Ex  parte  Mitcliell,  De 
Gex  B.  C.  257  ;  Blyth  v.  Dennett,  13  C.  B.  178  ;  Brewer  v.  Sparrow,  7  B. 
&  C.  310;  Woodward  v.  Larking,  8  Esp.  286  ;  Carpenter  v.  Butler,  8  M. 
&  W.  212  ;  Ilitchin  v.  Campbell,  2  W.  Bl.  827;  Croft  v.  Lumley,  6  H.  L. 
Cas.  672;  Charter  v.  Cordweut,  6  T.  R.  219. 


MAXIM  X. 


AmMguitas  verborum  latens  verificatione  siqyplekir ;   nam 

quod  ex  facto  oritur  amhiguum  verificatione  facti  tollitur : 

(Bac.  Max.  Reg.  23.) 
Latent  ambiguity  of  words  maj^  be  supplied  by  evidence  ; 

for  ambiguity  arising  upon  the  deed  is  removed  by 

I)roof  of  the  deed. 

T I  iHIS  rule  applies  to  written  instruments ;  and  anibiguitas 
-L  latens  (latent,  or  hidden,  ambiguity)  is  where  the  writing 
appears  to  be  free  from  ambiguity,  but  by  some  extrinsic  evi- 
dence or  matter  dehors  the  instrument  is  shown  not  to  be  so ; 
and,  inasmuch  as  the  ambiguity  arises  by  evidence  dehors  the 
instrument,  so  it  may  in  the  same  manner  be  removed.  The 
following  are  examples : — If  A.  devise  to  his  son  B.,  he  having 
two  sons  of  that  name ;  or  to  I.  E.,  the  daughter  of  A.,  by  the 
initial  letters  only,  and  A.  have  two  daughters  whose  names 
will  bear  those  initials,  evidence  will  be  admitted  to  show 
which  of  the  two  was  intended.  So  where  a  testator  gave  and 
bequeathed  to  his  son  E.  F.  all  that  dwelling-house,  &c.,  then 
in  the  occupation  of  his  son  I.  during  his  natural  life,  and  at 
his  death  to  descend  to  his  grandson  H.  F.,  the  claimant,  who 
was  the  son  of  testator's  son  E.,  and  the  defendant,  wlio  was 
the  son  of  the  testator's  son  I. ;  it  was  held  that  there  was  a 
latent  ambiguity  in  the  will  as  to  which  of  the  two  grandsons 
the  testator  meant  to  devise  the  house,  and  that  parol  evidence 
was  admissible  to  explain  it.  So  where  A.  by  his  will  left  all 
his  estate  to  F.  M.  F.  and  to  his  sister  M.  F.,  testator's  grand- 
daughter, share  and  share  alike ;  the  said  M.  F.  then  being  in 
France  with  her  uncle  M. ;  and  M.  F.  was  not  then  living,  nor 
had  ever  so  lived,  whilst  her  sister  C.  F.  was  living  and  had  so 
lived  with  her  uncle'  M. ;  it  was  held  that  extrinsic  evidence 
was  admissible  to  explain  the  ambiguity  in  the  will,  and  that 


36  LEGAL    MAXIMS. 

M.  F.  was  entitled.  In  such  and  the  like  cases,  where  the  lan- 
guage of  the  instrument  is  of  itself  plain,  but  where  it  is  ren- 
dered ambiguous  by  parol  evidence,  parol  evidence  will  be  ad- 
mitted to  explain  and  remove  the  ambiguity  thus  created. 

Arnbiguitas  patens  (patent,  or  open,  ambiguity)  is  where 
the  ambiguity  is  plainly  perceptible  upon  the  face  of  the  docu- 
ment under  consideration,  and  is  not  raised  by  extrinsic  evi- 
dence, in  which  case  parol  evidence  will  not  be  admitted  to 
explain  such  ambiguity ;  and  the  case  usually  given  to  illustrate 
this  is — where  a  testator  makes  a  devise,  but  omits  to  insert  the 
name  of  the  devisee;  in  such  case  the  devise  will  fail,  for 
parol  or  extrinsic  evidence  will  not  be  admitted  to  explain  such 
an  ambiguity,  as,  in  such  case,  to  admit  parol  evidence  to  show 
who  the  testator  meant  to  take  as  devisee  would  be  to  make  a 
devise  which  the  testator  himself  had  not  made.  So,  also, 
where  the  names  of  the  devisees  in  a  will  of  real  property  were 
all  indicated  only  by  single  letters,  it  was  held  that  a  card  kept 
by  the  testator  separate  from  his  will,  containing  "  a  key  "  to 
the  letters,  and  showing  the  person  meant  by  each,  was  inad- 
missible to  show  the  parties  intended  to  take,  although  the  card 
was  referred  to  by  the  testator  in  the  will.  But  where  the 
ambiguity  is  not  so  plainly  perceptible,  consisting  rather  of 
words  ambiguously  expressed,  but  capable  of  being  explained, 
evidence  will  be  admitted  to  remove  the  apparent  ambiguity  of 
words.  Still,  as  it  is  not  permitted  to  wander  out  of  the  in- 
strument to  remove  a  patent  ambiguity,  so  the  least  departure 
from  the  principle  of  construction  adopted  in  the  instances  just 
given  leads  to  another  rule,  namely,  that  applicable  to  arnbi- 
guitas latens. 


Bac.  Max.  Reg.  23  ;  5  Co.  68  ;  Counden  v.  Gierke,  Hob.  32  ;  Jones  v. 
Newman,  1  W.  Bl.  60  ;  Baylis  v.  Attorney  General,  2  Atk.  239  ;  Doe  dem. 
Gwillim  v.  Gwillim,  5  B.  &  Ad.  129;  Shortrede  v.  Cheek,  1  Ad.  &  E.  57; 
Hunt  V.  Hort,  3  Bro.  C.  C.  311 ;  Clayton  v.  Lord  Nugent,  13  M.  &  W.  206; 
Colpoys  «.  Colpoys,  1  Jac.  463  ;  Richardson  v.  Watson,  4  B.  &  Ad.  792; 
Thomas  v.  Benyon,  12  A.  &  E.  431 ;  Flemraing  v.  Flemming,  31  L.  J.  419, 
Exch. ;  LordWaterparkw.  Fennell,  5  Ir.  Law  Rep.  (N.  S.)  120;  Be  Plunkett, 
11  Ir.  Ch.  R.  361. 


MAXIM  XI. 


Argumentum  db  inconvenienti  pluriiim  valet  in  lege :   (Co. 

Litt.  66.) 
An  aroTLimeut  from  inconvenience  avails  much  in  law. 


'is' 


THIS  rule  applies  particularly  to  those  cases  where  the  lan- 
guage of  a  deed  or  other  document  under  consideration  is 
ambiguous,  when  that  construction  of  the  language  used  which 
will  lead  to  the  least  inconvenience  will  be  adoj)ted,  as  being 
the  one  most  likely  to  be  that  which  was  intended.  In  legal 
proceedings,  and  the  practice  of  the  courts,  also,  as  well  as  in 
the  construction  of  Acts  of  Parliament  and  similar  documents, 
the  rule  applies,  and  will  be  adopted  where  its  application  will 
not  violate  any  positive  fixed  law.  The  argument  ah  incon- 
venienti is  the  argument  most  commonly  used  in  our  courts  of 
law  and  equity ;  for,  wherever  the  law  is  found  to  be  defective 
or  insufiicient  to  meet  a  particular  case,  and  which  is  of  daily 
occurrence,  the  argument  ah  inconvenieyiti  arises,  and  is  per- 
mitted to  prevail.  By  this  means  the  inconvenience  is  re- 
moved, and  a  precedent  is  formed  for  future  similar  cases.  This 
precedent  is  part  of  the  common  law,  and  remains  so  to  be 
acted  upon  until  disused  or  incorporated  with  the  statute  law. 
This  could  not  be  otherwise — i.  e.,  every  inconvenience  occur- 
ring in  the  law  or  in  its  administration  must  be  removed  either 
by  precedent  or  statute ;  for,  all  laws  being  made  to  remedy 
inconveniences,  and  for  no  other  purpose,  the  moment  an  in- 
convenience arises  there  arises  also  the  necessity  for  its  removal. 
And  this  is  the  meaning  of  the  maxim,  that  an  argument  aris- 
ing from  inconvenience  avails  much  in  law — avails  so  much, 
in  fact,  that,  in  the  absence  of  express  law  to  the  contrary,  it  is 
the  law.  The  following  may  be  given  as  a  practical  instance 
of  the  application  of  this  maxim  : — The  rule  in  bankruptcy  is, , 
that  until  a  creditor  prove  his  debt  he  has  no  locus  standi  to 


38  LEGAL    MAXIMS. 

oppose  the  bankrupt's  discharge  before  the  commissioner ;  and 
it  is  also  said  that  if  he  have  no  status  to  oppose  in  the  court 
below,  he  cannot  be  heard  to  oppose  on  appeal  in  the  court 
above.  Upon  the  same  principle  it  was  contended  that  a  cred- 
itor having  a  status^  but  who  did  not  oppose  in  the  court  be- 
low, could  not  be  heard  in  the  court  above,  the  court  above 
being  appellate  only  ;  but  it  was  ruled  that  any  creditor  who  is 
entitled  to  oppose  in  the  court  below,  though  he  do  not  there 
oppose,  may,  notwithstanding,  ajjpeal  against  the  bankrupt's 
discharge ;  for  were  it  otherwise  the  greatest  inconvenience 
would  arise  if  200  or  300  creditors  must  all  appear  before  the 
commissioner  in  the  court  below  and  oppose  the  discharge  in 
order  to  entitle  them  to  appeal. 

It  is  also  said  that  nothing  which  is  inconvenient  is  lawful : 
"Nihil  quod  inconveniens  est  licitum  est."  And,  following 
that  principle,  it  is  that  public  policy  requires  that  all  things 
be  done  with  a  view  to  the  public  benefit  and  convenience.  It 
will  not,  therefore,  be  permitted  that  any  person  should  so  act 
as  to  work  a  public  inconvenience.  For  this  reason  it  is  that  a 
contract  having  for  its  object  the  preventing  a  man  carrying  on 
a  trade  or  business,  or  gaining  a  livelihood  in  any  particular  trade 
or  business,  for  however  short  a  time,  is  void  as  creating  a  pub- 
lic inconvenience  ;  and  all  prohibitory  contracts  of  that  descrip- 
tion, having  a  tendency  to  interfere  with  the  public  good,  will 
be  so  construed.  This  restraint  upon  trade  does  not,  however, 
apply  to  a  partial,  i.  e.,  local  proliibition — as  where  a  surgeon 
or  attorney,  by  bond,  is  under  a  penalty  not  to  exercise  his  pro- 
fession in  a  particular  district  or  town,  but  to  a  general  prohi- 
bition only. 


Co.  Litt.  66,  97,  258  ;  May  «.  Brown,  3  B.  &  C.  311-131  ;  Fletcher  v. 
Lord  Sondes,  3  Bing.  501,  Vaugli.  R.  37  ;  Mirehouse  v.  Renuell,  1  CI.  &  Fin, 
527-546;  Hinde  v.  Gray,  1  M.  &  Gr.  195 ;  Turner  v.  Sheffield  Eailway 
Company,  10  M.  &  W.  434  ;  Thompson  v.  Harvey,  1  Show.  2  ;  "Ward  v. 
Byrne,  5  M.  &  W.  548  ;  Pres.  of  Auchterarder  ».  Earl  of  Kinnoul,  6  CI.  & 
Fin.  646-671 ;  Ee  Mark  and  Brooks,  ex  parte  Burgess,  10  L.  T.  (K  S.)  634. 


MAXIM  XII. 


Assignatiis  iititurjurc  auctoris  :  (Hal.  Max.  14.) 
,t  wbicli  is  assig'i 
of  the  assisrnor. 


That  which  is  assigned  takes  with  it  for  its  use  the  rights 


'to' 


THE  assignee  of  a  chattel  or  other  property  or  right  assigned, 
has  all  the  rights  incident  to  such  chattel,  or  property,  or 
right,  which  the  assignor  had  at  the  time  of  the  assignment. 

This  maxim  applies  generally  to  all  property,  real  and  per- 
sonal, and  refers  to  assigns  by  act  of  the  parties,  as  where  the 
assignment  is  by  deed  ;  and  to  assigns  by  operation  of  law,  as 
in  the  case  of  an  executor.  All  rights  of  the  assignor  in  the 
thing  assigned  must  pass  from  him  to  the  assignee  by  virtue  of 
the  assignment,  for  "  Duo  non  possunt  in  sohdo  unam  rem  pos- 
sidere  " — Two  persons  cannot  possess  one  thing  in  its  entirety. 

An  assignor  may,  of  course,  assign  less  than  he  possesses,  as 
part  of  his  estate,  whether  of  freehold  or  leasehold,  by  grant 
with  conditions,  or  by  way  of  demise,  or  sub-demise  ;  or  of  goods 
and  chattels,  the  right  of  property  apart  from  the  property 
itself,  as  in  the  case  of  mortgage  or  pledge.  But  he  cannot 
effectually  assign  more,  or  give  to  his  assignee  any  greater  right 
than  he  himself  possesses  at  the  time  of  the  assignment,  unless 
it  be  that  he  subsequently  acquire  the  right  which  he  did  not 
then  jDossess ;  as,  where  a  lessor  mortgages  by  assignment  and 
then  demises,  the  legal  estate  not  being  in  him  ;  on  his  subse- 
quently acquiring  the  legal  estate,  the  interest  of  the  lessee 
therein  will  at  once  accrue.  And  in  such  ease  it  is  said,  that 
if  the  lease  be  made  in  such  form  as  to  create  between  the  lessor 
and  lessee  an  estoppel  to  deny  that  the  lessor  had  a  reversion, 
the  assignee  of  the  lessor  may  thereby  establish  his  title  by 
estoppeh  And,  whenever  an  estate  by  estoppel  becomes  a 
vested  interest  by  the  lessor's  subsequently  acquiring  the  estate, 
the  lessee  and  assignee  have  tlie  same  rights  and  liabilities  as 


4:0  LEGAL    MAXIMS. 

if  the  estate  had  been  at  the  first  an  interest  in  possession. 
Where,  however,  the  deed  does  not  operate  as  an  estoppel,  as 
where  it  appears  that  the  lessor  had  only  an  equitable  interest, 
the  benefit  and  burden  of  the  covenants  do  not  pass  to  the  as- 
signee. Covenants  running  with  the  land  may  be  given  as  a 
familiar  instance  of  the  application  of  this ;  as  where  a  lessor 
or  lessee  covenants  to  repair,  this  and  other  like  covenants  pass 
with  the  estate  granted,  during  its  continuance,  into  the  hands 
of  assignees,  who  will  have  the  same  rights  respecting  them  as 
the  lessor  or  lessee  himself  had.  So  the  assignee  takes  the  bur- 
den of  all  breaches  of  covenant  by  him  during  his  holding,  and 
his  liability  upon  the  covenants  continues  until  by  assignment 
he  destroys  the  privity  of  estate  existing  between  him  and  the 
lessor.  A  sub-lessee  does  not,  however,  take  any  liability  in 
respect  of  the  covenants  in  the  original  lease,  there  being  no 
privity  of  estate  between  him  and  the  original  lessor. 

The  law  favors  commercial  transactions,  and  for  the  sake  of 
commerce  it  sometimes  permits  a  man  to  assign  to  another  a 
greater  right  than  he  himself  possesses  ;  as  in  sales  in  market 
overt ;  in  the  negotiation  of  bills  of  exchange,  bills  of  lading, 
&c.,  in  which  cases  the  hona  fide  purchaser  or  assignee  for 
value,  without  notice  of  fraud  or  illegality,  acquires  a  perfect 
title  in  the  thing  purchased  or  assigned,  notwithstanding  any 
imperfection  in  the  title  of  the  assignor. 

It  must  be  observed,  also,  that  the  thing  assigned  takes  with 
it  all  the  liabilities  attached  to  it  in  the  hands  of  the  assignor 
at  the  time  of  assignment,  as  in  the  case  of  an  assignment  of  a 
lease,  before  mentioned,  except  in  such  cases  as  those  just  men- 
tioned for  the  encourao-ement  of  commerce. 


Hal.  Max.  14;  Co.  Litt.  368;  11  Co.  52;  5  Co.  17;  2  Wms.  San'jd.418; 
Gurney  v.  Behrend,  3  E.  &  B.  633  ;  Bishop  v.  Curtis,  18  Q.  B.  278  ;  Lysaght 
V.  Bryant,  9  C.  B.  46  ;  Ilarley  v.  King,  2  C.  M.  &  R.  18  ;  Webb  v.  Austin, 
8  Scott  K  R.  419  ;  Paul  v.  Nurse,  8  B.  &  C.  486  ;  White  v.  Crisp,  10  Exch. 
312;  Bryant  v.  Wardell,  2  Exch.  479  ;  Feno  v.  Bittleston,  7  Exch.  152; 
Sturgeon  v.  Wingfleld,  15  M.  &  W.  224. 


MAXIM   XIII. 


Benignm  faciendce  sunt  inter pretationes,  'propter  simplicitatem 
laicoriim,  ut  res  magis  valeat  qumn  pereat ;  et  verba  in- 
tentioni,  non  e  contra,  element  inservire :  (Co.  Litt.  3G.) 

Liberal  constructions  of  written  documents  are  to  be 
made,  because  of  the  simplicity  of  the  laity,  and  with 
a  view  to  carry  out  the  intention  of  the  i^arties  and 
uphold  the  document ;  and  words  ought  to  be  made 
subservient,  not  contrary,  to  the  intention. 

THE  translation  given  of  this  maxim,  taken  generally,  makes 
its  meaning  sufficiently  obvious.  It  may  be  well,  how- 
ever, further  to  observe,  that  it  applies  to  all  written  instru- 
ments of  a  private  or  public  nature,  and  that  the  intention  of 
the  parties  will  in  all  cases  be  the  rule  of  construction,  where 
such  construction  will  not  contravene  any  positive  rule  of  law. 
"Where  an  instrument  cannot  be  construed  so  as  to  carry  out 
fully  the  intentions  of  the  parties,  it  shall  be  made  to  operate 
so  far  as  possible.  Where  two  join  in  a  grant  of  land,  one 
having  no  interest  or  no  capacity,  the  grant  shall  be  construed 
to  operate  as  that  of  the  one  having  the  interest  or  capacity  ; 
or,  where  one  grants  a  larger  estate  than  he  possesses,  the  grant 
shall  be  construed  so  as  to  pass  such  estate  as  ho  has.  So  in 
deeds,  contracts,  wills,  &c.,  where  the  parties  omit  to  express 
tliemselves  in  technical  language,  tlie  deficiency  will  be  sup- 
plied by  the  context,  and  the  intention  upheld  where,  in  doing 
so,  no  express  rule  of  law  established  for  the  construction  of 
such  deeds,  contracts,  wills,  &c,,  will  be  thereby  violated. 
"Where,  however,  technical  language  is  used,  even  thougli  im- 
properly, effect  must  be  given  to  it,  according  to  tlie  rule  of 
giving  effect  to  every  part  of  a  document,  unless  it  leads  to 
manifest  absurdity.  Tlie  construction  to  be  put  upon  Acts  of 
Parliament  depends  upon  the  intention  of  the  Legislature,  and 


42  LEGAL    MAXIMS. 

eacli  part  of  tliem  is  to  be  read  and  construed  with  reference 
to  the  whole,  as  is  the  case  with  the  ordinary  acts  of  individ- 
uals. Tlie  construction  of  instruments  between  parties,  wills, 
&c.,  depends  upon  tlie  intention  of  the  parties,  and  the  gram- 
matical and  ordinary  sense  of  the  words  is  to  be  adhered  to, 
unless  that  would  lead  to  some  absurdity,  or  some  repugnancy 
or  inconsistency  with  the  rest  of  tlie  instrument,  in  which  case 
the  grammatical  and  ordinary  sense  of  the  words  is  to  be  mod- 
ified so  as  to  avoid  that  absurdity  or  inconsistency,  but  no 
further.  There  is,  however,  a  limit  put  to  the  construction  of 
written  instruments,  and  that  is,  that  words  will  not  be  added 
to,  or  struck  out  of,  a  document  so  as  to  alter  in  anywise  tlie 
obvious  meaning  of  it  in  any  part,  nor  so  as  to  make  a  fresh 
deed  or  document  for  the  parties,  but  every  part  of  the  docu- 
ment, and  every  word  in  it,  must  be  considered  ^vith  reference 
to  the  whole,  and  that  whole  considered  in  a  manner  agreeable 
to  reason  and  common  sense,  according  to  manifest  intention, 
and  with  a  view,  if  possible,  to  uphold  the  document.  For, 
"  Nihil  tam  conveniens  est  naturali  ssquitati,  quam  voluntatem 
domini  voluntatis  rem  suam  in  alium  transf erre  ratam  habere  " 
— Nothing  is  so  consonant  to  natural  equity  as  to  regard  the 
intention  of  the  owner  in  transferring  his  projierty  to  another. 
A  single  instance  of  the  practical  application  of  the  maxim 
under  consideration  will  suffice.  Where  a  bill  of  sale  appeared 
to  have  been  executed  on  the  31st  of  December,  1860,  and  the 
date  of  the  jurat  of  the  affidavit  which  was  filed  with  it  being 
the  10th  of  January,  1860 ;  the  Court  of  Queen's  Bench  as- 
sumed that  the  date  in  the  jurat  arose  from  a  mistake  often 
made  in  dates  at  the  commencement  of  the  year,  and  in  accord- 
ance with  the  principle  of  this  maxim  allowed  the  jurat  to  be 
amended. 


Co.  Litt.  80  :  1  Co.  100;  Shep.  Touch.  86,  87,  166,  253;  Gore  r.  Lloyd, 
12  M.  &  W.  478 ;  Chapman  v.  Towner,  6  M.  &  W.  100 ;  Tarte  v.  Darby,  15 
M.  &  W.  601 ;  Biffin  v.  Yorke,  6  Scott  N.  R.  235  ;  Arnold  v.  Ridge,  13  C. 
B.  763  ;  East  v.  Twyford,  4  H.  L.  Cas.  556  ;  Blamford  v.  Blamford,  3  Buls. 
103;  Hollingsworth  v.  White,  6  L.  T.  (N.  S.)  604;  Grey  v.  Pearson,  29  L.  T. 
67;  Cheney  i\  Courtois,  7  L.  T.  (N.S.)  680;  Broom  v.  Bachelor,  27  L.T.  22. 


MAXIM   XIV. 


Boni  jiuUcis  est  ampUare  jurisdictionem :  (Chan.  Prac.  329.) 

A  good  judge  will,  when  necessary,  extend  the  limits  of 
his  jurisdiction. 

THE  word  "  jurisdictionem "  should  be,  according  to  Lord 
Mansfield,  "  justitiam,"  and  the  meaning  of  the  maxim  in 
such  case  is,  that  to  be  a  good  judge  is  to  amplify  in  his  ofiice 
the  remedies  the  law  gives,  so  as,  in  the  most  perfect  manner, 
to  do  the  most  complete  justice,  not  letting  substantial  justice 
be  frittered  away  by  nice  and  unmeaning  technicalities,  or  him- 
self to  lay  hold  of  such  technicalities  as  a  means  of  avoiding 
giving  a  decision  according  to  very  right,  in  broad  and  sub- 
stantial justice.  And  this  he  has  the  power  and  opportunity 
to  do  in  all  those  cases  which,  by  the  common  law,  the  practice 
of  his  court,  and  by  legislative  enactment,  are  left  to  his  dis- 
cretion— meaning  by  discretion  the  exercise  of  a  sound  judg- 
ment upon  the  facts,  or,  as  it  is  stated  by  Lord  Mansfield  to  be  : 
sound  discretion  guided  by  law,  governed  by  rule,  not  humor ; 
not  arbitrary,  vague,  and  fanciful,  bat  legal  and  regular;  ac- 
cording to  the  maxim,  "  Discretio  est  discernere  per  legem  quid 
sit  justum."  But  tlie  maxim  does  not  mean  that  a  good  judge 
will  exceed  the  limits  of  his  jurisdiction,  or  that  he  will  do 
anything  other  than  that  which  by  the  law  and  practice  of  his 
court  lie  is  autliorized  to  do. 

Kecent  legislation  has  greatly  extended  the  jurisdiction  of 
the  judges  of  the  superior  courts  of  common  law,  by  giving 
them  power  to  amend  at  all  times  all  defects  and  errors  in  any 
proceeding  in  civil  causes,  and  whether  there  be  anytliing  in 
writing  to  amend  by  or  not,  and  whether  the  defect  or  error 
be  that  of  the  party  applying  to  amend  or  not,  and  u]ion  sucli 
terms  as  to  them  shall  seem  fit ;  and  all  sucli  other  amend- 
ments as  may  be  necessary  for  determining,  in  tlie  then  exist- 


44  LEGAL    MAXIMS. 

ing  suit,  tlie  real  question  in  controversy  between  the  parties. 
And  the  proper  exercise  of  the  2)ower  thus  given  is  an  applica- 
tion of  the  maxim  under  consideration.  With  this  maxim 
should  be  considered  the  following  :  "  Bonus  judex  secundum 
sequum  et  bonum  judicat,  et  sequitatem  stricto  juri  prsefert " 
— A  good  judge  judges  according  to  equity  and  right,  and  pre- 
fers equity  to  strict  law  ;  and  which  equity  so  considered  is  the 
construction  which  judges  put  upon  the  letter  of  the  law  in 
the  decision  of  cases  within  the  mischief,  yet  not  within  the 
letter,  that  there  may  be  no  failure  of  justice,  inasmuch  as  it 
is  impossible  that  the  Legislature  should  foresee  and  set  down 
in  express  terms  every  evil  to  be  provided  against. 

The  practice  of  courts  of  equity,  and  the  principles  govern- 
ing the  decisions  of  the  judges  of  those  courts,  are  apt  instances 
of  the  amplification  thereby  of  the  remedies  given  by  the  law ; 
and  so  is  the  manner  in  which  justice  is  administered  in  those 
courts.  The  recent  ajDplication  of  equitable  to  strict  legal  pro- 
ceedings, as  the  permitting  equitable  pleas,  &c.,  and  the  liberal 
manner  in  which  that  equitable  jurisdiction  is  applied  by  the 
common-law  judges  to  strict  legal  proceedings,  is  another  in- 
stance of  the  application  of  the  maxim.  So  also  are  the  equi- 
table powers  given  to  the  judges  of  the  county  courts,  and  the 
free  and  independent  manner  in  which  they  in  equity  adminis- 
ter the  law,  further  instances.  The  maxim  is  also  as  well  ap- 
plied in  preventing  evil  as  in  amplifying  the  remedies  given ; 
instances  of  which  are  the  discountenancing  petty  and  vexa- 
tious suits,  the  refusal  of  applications  for  unnecessary  amend- 
ments of  proceedings,  adjournment  of  hearings,  postponements 
of  trials,  references  to  arbitration,  new  trials,  &c.,  all  of  which 
are  fruitful  sources  of  unnecessary  and  vexatious  costs  and  lit- 
igation. 


Chan.  Prac.  329;  Co.  Litt.  24;  Ld.  Rayra.  956;  Rex  v.  Phillips,  1 
Burr.  304;  Moses  t\  Macfarlune,  2  Burr.  1012;  4  Burr.  2238;  Russell  v. 
Smyth,  9  M.  &  W.  818 ;  Clement  v.  Weaver,  4  Scott  N.  R.  229;  Copley 
V.  Day.  4  Taunt.  702  ;  Evans  v.  Rees,  12  Ad.  &  El.  167  ;  Collins  v.  Aron, 
4  Ring.  N.  C.  233;  Taylor  v.  Shaw,  21  L.  T.  58;  Freeman  v.  Trauah,  12 
C.  B.  411  ;  C.  L.  P.  A.  1852. 


MAXIM  XV. 


Caveat  em])tor ;    qui  ig)iorare  non  debuit  quod  jus  alienum 
emit :  (Hob.  99.) 

Let  a  purchaser  beware  ;  no  one  ought  in  ignorance  to 
buy  that  which  is  the  right  of  another. 

THIS  maxim  may  be  shortly  stated  as  "  caveat  emptor " — 
Let  the  buyer  beware  ;  and  apphes  to  purchasers  of  all 
descriptions  of  property,  whether  of  lands  or  goods,  as  well  to 
title  as  to  quantity  and  quality,  and  is  generally  applied,  in  the 
case  of  real  estate  and  chattels  real,  in  the  following  manner : 
— Where  A.  sells  land  to  B.  with  a  defective  title,  A.  not 
knowing  of  the  defect,  in  this  case  B.  though  evicted,  has  no 
remedy  against  A.  ;  nor  does  it  make  any  difference,  though 
the  defect  were  known  to  A.,  if  it  were  a  patent  defect,  and 
might  by  reasonable  diligence  have  been  also  known  to  B.,  and 
this  though  A.  had,  in  the  course  of  the  negotiations  for  sale, 
made  misrepresentations  respecting  the  alleged  defect. 

If,  however,  the  defect  be  a  latent  one,  known  to  the 
vendor,  but  not  disclosed  to  the  purchaser,  and  which  by 
proper  diligence  the  purchaser  could  not  possibly  have  discov- 
ered, in  this  case  caveat  emptor  does  not  apply,  and  the  pur- 
chaser is  not  bound  to  the  contract,  either  in  law  or  in  equity. 

If  the  case  be  one  of  misdescription  only,  in  the  particu- 
lars of  the  property  contracted  to  be  sold,  and  docs  not  go  to 
the  whole  subject  of  the  contract,  this  will  be  set  right  by  a 
court  of  equity,  and  an  equivalent  will  be  ordered  to  be  given 
by  way  of  compensation. 

The  same  rule  applies  to  the  purchase  of  specific  chattels 
personal,  and  may  be  thus  briefly  stated  :  where  the  purchaser 
has  an  opportunity  of  judging  of  the  quality  of  the  goods 
purchased,  he,  in  the  absence  of  express  warranty,  takes 
them  with  all  their  defects.     Where,  however,  he  confides  in 


46  LEGAL    MAXIMS. 

the  judgment  of  the  seller,  as  where  he  orders  goods  suitable 
for  a  particular  purpose,  the  law  implies  a  warranty  that  they 
will  he  suitable  for  that  purpose;  and  this  generally  as  to 
both  title  and  quality.  In  all  contracts  for  the  sale  of  goods, 
if  the  seller  warrants  the  things  sold  to  be  of  a  good  and  mer- 
chantable quality,  and  on  delivery  they  are  found  to  be  of  a 
different  quality  from  that  ordered  by  the  purchaser,  or  if  he 
discover  some  latent  imperfections  in  them  which  were  not  vis- 
ible to  a  man  of  ordinary  circumspection  at  the  time  of  pur- 
chasing, he  may,  on  the  immediate  discovery  of  their  not  cor- 
responding with  the  order,  return  them  and  rescind  the  con- 
tract. But  unless  the  seller  expressly  warrants  the  goods  sold  to 
be  sound  and  good,  or  that  he  knew  them  to  be  otherwise,  and 
has  used  some  art  to  disguise  the  defect,  the  buyer  cannot  re- 
cover back  the  price.  On  the  whole,  it  appears  that  the  law 
requires  the  purchaser  in  all  cases  to  use  the  utmost  diligence 
in  the  investigation  of  the  right  and  title  to,  and  nature, 
estate  and  quality  of,  the  thing  to  be  purchased  ;  and  if  he  do 
not,  then,  in  the  absence  of  positive  fraud  on  the  part  of  the 
vendor,  he  (the  purchaser)  must  take  the  thing  jDurchased  as 
he  finds  it,  with  all  faults.  It  may  be  proper  here  to  add 
that  positive  fraud  vitiates  all  contracts,  as  well  at  law  as  in 
equity,  and  that  money  paid  upon  such  a  contract  may  be  re- 
covered back,  and  the  contract  rescinded  or  declared  void,  and 
which  indeed  it  is  of  itself  ab  initio.  It  is  a  common  judicial 
saying,  that  upon  a  sale  "  with  all  faults,"  it  is  not  intended  to 
be  with  all  "  frauds." 


Hob.  99;  1  Campb.  193;  Eoll.  Abr.  90;  Noy  Max.  c.  43;  Attwood  v. 
Small,  6  CI.  &  Fin.  232;  Lowndes  «.  Lane,  2  Cox,  263  ;  "White  v.  Cuddon, 
8  CI.  &  Fin.  766 ;  Duke  of  Beaufort  v.  Neeld  and  others,  12  CI.  &  Fin. 
248  ;  Hart  v.  Windsor,  12  M.&  W.  68  ;  Brown  v.  Edgington,  2  Scott  N.  R. 
504 ;  Shrewsbury  v.  Blount  and  others,  2  Scott  N.  R.  588 ;  Keele  v.  Wheeler, 
7  M.  &  Gr.  663 ;  Parkinson  v.  Lee,  2  East,  314  ;  Gray  v.  Cox,  4  B.  &  C. 
108  ;  Jones  v.  Bright,  5  Bing.  533. 


MAXIM  XVI. 


Cerium  est  quod  certuin  rcddi  potest :  (9  Co.  47.) 
That  is  certain  which  is  able  to  be  rendered  certain. 

THE  following  are  instances  of  the  application  of  this 
maxim.  If  a  lease  be  made  to  J.  S.  for  life,  remainder 
to  him  who  shall  come  first  to  St.  Paul's  on  such  a  day ;  or  to 
him  whom  J.  S.  shall  name  in  three  days ;  if,  in  these  cases, 
any  one  comes  to  St.  Paul's  on  that  day,  or  be  named  by  J.  S. 
within  the  three  days,  and  the  particular  estate  so  long  con- 
tinue, that  is  a  good  grant  of  the  remainder  under  this  rule ; 
but  otherwise,  if  the  grant  be  to  four  of  the  parishioners  of 
Dale,  for  this  grant  is  absolutely  void  for  uncertainty.  So  in 
a  contract  for  the  sale  of  lands  or  goods,  where  the  particu- 
lars of  the  lands  or  goods  contracted  to  be  sold  are  not  set  out 
in  the  contract,  but  reference  is  made  to  another  instrument  in 
which  they  are  so  set  out ;  as,  where,  on  the  sale  of  large 
quantities  of  machinery,  stock  in  trade,  &c.,  reference  is  made 
to  an  inventory  thereof ;  or,  where,  on  the  sale  of  lands  and 
buildings,  reference  is  made  to  an  advertisement  in  the  news- 
papers or  to  particulars  of  sale  by  auction.  Also  on  the  con- 
veyance or  assignment  of  lands  or  goods,  where  the  convey- 
ance or  assignment  is  by  reference  to  a  schedule  or  inventory, 
or  to  another  deed  containing  the  particulars  of  the  lands  or 
goods  conveyed  or-  assigned.  Again,  in  the  case  of  a  will  or 
codicil,  where  there  is  a  reference  to  some  testamentary  paper 
not  incorporated  into  the  will  or  codicil ;  or,  an  Act  of  Parlia- 
ment, where  reference  is  made  to  a  schedule  in  such  Act,  or  to 
another  Act  of  Parliament ;  or  in  the  case  of  a  patented  in- 
vention where  reference  is  made  to  the  specification  contain- 
ing the  particulars  of  the  invention  patented. 

An    uncertainty   or   incorrectness   in    the   description    of 


48  LEG  AL    MAXIMS. 

premises  in  the  hahendum  of  a  deed,  also,  is  made  certain  by 
reference  to  the  parcels,  and  so  in  similar  cases. 

So,  where  an  estate  or  interest  in  lands  is  devised  subject 
to  be  vested  or  divested  upon  condition,  the  estate  becomes 
absolute  or  forfeited  upon  the  performance  or  non-perform- 
ance of  the  condition.  As,  where  the  condition  is  that  the 
devisee  shall  take  the  name  of  the  devisor ;  or,  that  the  widow 
of  the  devisor  shall  not  marry ;  or,  where  the  condition  is  that 
the  estate  shall  be  diverted  and  go  into  a  different  channel 
upon  the  happening  of  a  particular  event,  as,  upon  failure  of 
issue  of  one  person  then  to  another,  and  for  a  larger  or 
smaller  interest  as  the  case  may  be,  or  any  other  such  like  con- 
tingency. A  lease  for  lives,  and  a  term  to  commence  on  the 
death  of  the  survivor ;  the  duration  of  a  term  capable  of 
being  determined  or  prolonged  at  the  option  of  the  lessor  or 
lessee ;  a  contract  for  the  'sale  of  growing  crops  or  goods  in 
bulk  by  weight  or  measure  ;  are  all  instances  of  the  applica- 
tion of  the  maxim.  So,  where  an  assignment  was  made  to  a 
company  as  such,  without  designating  the  persons  forming  the 
company  by  names,  and  it  was  contended  that  the  property 
would  not  pass  to  the  defendants,  it  was  held  that,  it  being 
capable  of  being  ascertained  who  were  the  company,  when  so 
ascertained,  the  grant  would  take  effect  under  this  maxim. 

In  all  the  above  cases  the  uncertainty  is  removed  by  pro- 
duction of  the  instrument  referred  to  ;  by  the  happening  of 
the  contingency  upon  which  the  grant  over  is  to  take  effect ; 
or  by  evidence  in  explanation  of  the  intention  ;  the  con- 
tract or  covenant  in  the  meantime  being  sufficiently  certain  to 
enable  it  to  be  acted  upon. 


9  Co.  47  ;  2  Bla.  Com. ;  Sliepp.  Touch.  236,  237,  250,  273;  Co.  Litt.  S, 
45,  47,  96 ;  Doe  dem.  Timmins  v.  Steele  and  another,  4  Q.  B.  663 ;  Park  r. 
Harris,  1  Salk.  262-  Wildmau  v.  Glossop,  1  B.  &  Aid.  9;  King  v.  Badeley, 
8  Myl.  &  K.  417;  Gladstone  v.  Neale,  13  East,  410  ;  Cotterill  t.  Cuflf,  4 
Taunt.  285 ;  Hewson  v.  Reed,  5  Mad.  451 ;  Jeacock  v.  Falconer,  1  Bro.  C. 
C.  295 ;  Doe  dem.  Blake  v.  Luxton,  6  T.  R.  289  ;  Pilsworth  v.  Pyat,  2  T. 
Jones,  4 ;  Maughan  v.  Sharpe,  10  L.  T.  (N.  S.)  870. 


MAXIM  XVII. 


Cessante  ratione  legis,  cessat  ii)sa  lex :  (Co.  Litt.  70.) 
The  reason  of  tlie  law  ceasiug,  the  law  itself  ceases. 

WIIEN  the  law  casts  upon  an  individual,  or  hody  of  per- 
sons the  burden  of  particular  duties,  it  clothes  them 
also  with  the  means  of  performing  those  duties,  but  so  long 
only  as  they  are  in  the  performance  of  those  duties  have  they 
the  protection  of  tlie  law ;  and  the  moment  the  reason  of  their 
being  so  protected  ceases,  the  protection  so  afforded  to  them 
by  the  law  also  ceases.  This  may  be  familiarly  instanced  in 
the  protection  from  all  civil  process  given  to  a  foreign  ambas- 
sador whilst  in  the  exerise  of  the  duties  of  his  office  in  this 
country;  to  members  of  Parliament  during  the  sitting  of 
Parliament ;  to  all  judges  exercising  their  judicial  functions ; 
to  barristers  attending  the  courts  of  law  and  equity ;  to  at- 
torneys, solicitors,  and  other  officers  of  the  several  courts  of 
law  and  equity ;  and  to  sheriffs  and  others  acting  in  the  admin- 
istration of  the  law,  and  in  which  they  are  by  law  authorized 
and  required  so  to  act :  and  the  reason  in  these  particular  cases 
is,  that  such  protection  is  necessary  for  the  performance  by 
them  of  their  respective  duties,  but  the  moment  they  cease  to 
be  so  acting  the  protection  so  afforded  to  them  also  ceases. 

The  maxim  is  applicable  also  as  well  to  things  as  to  persons. 
Things  may  be  called  property,  and  to  all  property  there  are 
rights  and  duties  incident.  Of  all  property,  also,  there  is  of 
necessity  a  proprietor,  upon  whom  devolves  as  well  the  rights 
as  the  duties  incident  to  the  property,  according  to  its  partic- 
ular nature  and  use,  and  for  the  due  performance  of  whicli 
rights  and  duties  he  is  responsible  to  the  law  so  long  as  lie 
continues  to  be  such  proprietor;  but  so  soon  as  the  ])roi)crty 
passes  from  him,  the  incidents  connected  tlierewitli  wliicli  the 
law  attaches  thereto  also  pass.  So  it  is  upon  the  destruction 
4 


50  LEGAL    MAXIMS. 

of  the  property,  or  tlie  diversion  of  it  from  a  particular  use. 
Upon  its  destruction  the  riglits  and  duties  attached  to  it  are 
destroyed,  and  upon  its  diversion  from  one  use  to  another  such 
riglits  and  duties  are  also  diverted. 

All  lands  in  England  were  at  one  time  held  upon  condition 
of  the  performance  by  the  holder  or  feoffee  of  some  military 
or  other  services,  and  those  services  were  attached  to  tlie  land, 
and  followed  it  upon  each  successive  change  into  the  hands  of 
each  succeeding  holder  or  feoffee,  and  continued  subject  to  the 
same  or  other  services  according  to  the  will  of  the  feoffor  or 
lord.  Such  grants  being  made  originally  by  the  king  to  his 
followers  for  warlike  services,  the  necessity  for  such  a  mode 
of  pa\Tiient  ceasing,  the  use  of  the  land  was  allowed  to  be 
diverted,  and  the  land  itself  to  be  granted  out  upon  other 
conditions ;  still,  however,  subject  to  conditions,  being  those 
rights  and  duties  which  the  law  attaches  to  it,  and  which  it  can 
at  any  time  attach  to,  or  take  away.  A  right  of  common,  in 
the  present  day,  is  one  which  the  law  both  gives  and  takes 
away ;  the  common  law  gives  the  right  of  common  to  the 
owner  of  the  adjoining  land,  and  the  law  by  legislative  enact- 
ment takes  it  away,  by  diverting  its  purpose,  and  making  what 
was  before  merely  a  right,  a  realty ;  there  being  no  more  any 
reason  why  such  common  lands  should  exist,  but  rather  a  reason 
to  the  contrary,  the  law  interferes  and  alters  their  nature,  by 
directing  that  what  was  before  common  to  all,  should  be  ap- 
propriated equally  to  each. 

So  in  all  cases  of  privilege  granted  by  the  law,  and  of  Acts 
.of  Farliament  become  obsolete ;  for,  when  the  reason  for  their 
institution  ceases,  they  themselves  also  cease. 

The  maxim  "  Cessante  causa,  cessat  eff'ectus,"  is  to  the  same 
purpose. 


Co.  Litt.  70;  Shepp.  Touch.  287 ;  Nov  Max.  5;  Plowd.  208;  Whelp- 
dale's  Case,  5  Co.  119;  11  Co.  49;  13  Co.  38;  Davis  v.  Powell  and  others, 
AVilles,  46;  Goody  v.  Duncombe,  1  Exch.  430;  Bromfield  v.  Kh'ber,  11 
Mod.  72;  Jones  v.  Robin,  10  Q.  B.  581;  Pritchard  v.  Powell  and  others, 
10  Q.  B.  589 ;  Heath  v.  Elliott,  4  Bing.  N.  C.  388  ;  Gullctt  v.  Lopes,  Bart., 
13  East,  348  ;  Richards  v.  Heather,  1  B.  &  Aid.  29-33;  Wells  v.  Pearcey, 
1  K  C.  556. 


MAXIM  XVIIL 


Communis  error  facit  jus  :  (4  lust.  240.) 
Common  error  makes  law. 

"  /COMMUNIS  ERROR,"  or  common  error,  is  anotliej 
^^  name  for  "  communis  opinio,"  or  common  opinion, 
and  this  common  opinion  is  expressed  by  Littleton,  in  French, 
thus  :  "  II  est  communement  dit ; "  which  in  English  is,  it  is 
commonly  said.  So,  if  we  search  a  little  the  chronicle  of 
human  events,  we  discover  the  origin  of  fine  names,  and  that 
the  law  of  the  wisdom  of  past  ages  is  no  other  than  barbarous 
common  sense. 

If  we  are  to  consider  common  error  as  common  opinion, 
then,  to  that  extent,  it  is  law ;  for  it  cannot  be  said  that  com- 
mon opinion  is  not  law,  nor,  to  come  within  the  words  of  the 
maxim,  can  it  be  said  that  common  error  does  not  make  law. 
Law  is,  in  this  resjject,  as  a  language ;  it  is  the  common  voice 
of  the  peoijle,  and  that  which  is  common  to  all  must  govern 
each.  There  is  not  any  of  the  laws  of  this  country  which  has 
not  for  its  origin  common  opinion.  The  right  of  the  possessor 
or  occupier  of  land  to  hold  it  against  the  true  owner,  wliich 
under  the  statutes  of  limitation  he  may  do,  has  for  its  origin 
tlie  common  error  or  common  opinion  that  the  occupier  is  the 
owner.  So  of  a  debt  barred  by  tlie  statute  of  limitations ; 
before  tlie  passing  of  the  statute  it  was  considered  reasonable 
to  presume  that  the  debt  had  been  paid  after  tlie  lapse  of  a 
certain  period,  whctlier  it  liad  been  so  paid  or  not.  So  of  per- 
sonal chattels  which  are  said  to  pass  by  delivery ;  tlie  possessor 
of  them  is  presumed  in  law  to  be  the  owner,  wliicli  presnm]v 
tion,  however,  is  common  opinion  only,  and  may  be  common 
error  notwithstanding. 

Again,  to  say  that  common  error  is  law,  is  merely  to  say 


52  LEGAL    MAXIMS. 

that  what  is  called  universal  opinion  may  be,  and  is  frequently, 
universal  error,  though  until  the  error  is  discovered  it  is  law. 

The  following  case  given  by  Lord  Coke  will  serve  to  illus- 
trate the  maxim.  By  stat.  34'  Hen.  8,  it  was  enacted  that  there 
should  be  holden  sessions  twice  every  year  in  every  of  twelve 
shires  in  Wales  there  mentioned,  which  sessions  should  be 
called  "  the  King's  great  sessions  of  "Wales."  A  fine  was  levied 
of  lands  in  the  county  of  Carmarthen,  and  the  writ  of  cove- 
nant was  "  Coram  justiciariis  nostris  magnse  assizse  in  Com. 
Carmarthen ; "  and  because  all  judicial  precedents  had  been  in 
that  form  ever  since  the  passing  of  the  statute,  it  was  adjudged 
good,  for  "  Communis  error  facit  jus." 

The  correctness  of  the  proposition  stated  in  the  maxim  is 
shown,  also,  by  the  yearly  passing  of  indemnity  Acts  to  relieve 
persons  from  the  consequence  of  their  having  acted  in  error, 
and  Acts  to  confirm  proceedings  taken  by  parties  in  ignorance 
of  the  law  upon  a  commonly  received  notion ;  as,  to  confinn 
ministerial  or  judicial  acts  done  in  error  contrary  to,  or  not 
having  the  sanction  of,  law.  Custom  has  at  all  times  been 
the  law-maker  for  the  people,  and  custom  is  the  consent  of  the 
people  to  a  particular  course  of  conduct,  whether  right  or 
wrong ;  and  the  question  whether  right  or  wrong  depends 
upon  the  religious  and  moral  state  of  the  particular  community ; 
and  the  custom,  which  is  the  law  of  that  community,  may  be 
fouilded  in  truth  or  in  error,  according  to  such  religious  and 
moral  state. 

In  considering  this  maxim,  however,  it  must  not  be  for- 
gotten that  a  law  having  for  its  foundation  common  error, 
opinion,  or  custom,  is  good  only  so  long  as  it  is  not  opposed 
to  any  positive  law  to  the  contrary ;  and  though  it  is  capable 
of  other  qualifications,  it  is  not  considered  necessary  here  to 
state  them. 


4  Inst.  240 ;  Shepp.  Touch.  40;  Xoy  Max.  37;  Co.  Litt.  186  a,  364  b\ 
Hob.  147;  Wing  Max.  758;  Hotley  v.  Scott,  LoflFt's  Kep.  316;  Isherwood 
V.  Oldknow,  3  M.  &  S.  382-396 ;  Garland  v.  Carlisle,  3  Cr.  &  M.  95 ;  New 
River  Company  v.  Hertford  L.  C,  2  H.  &  N.  129;  Hart  v.  Frame,  6  CI. 
&Fin.  193;  Rex  v.  Inhabitants  of  Eriswell,  3  T.  R.  707;  Stevenson  v. 
Rowand,  2  Dow.  &  Clark,  104. 


MAXIM  XIX. 


Consensus  non  concuhitus  facit  matrimonium  :  (G  Co.  22.) 
Consent  not  concubinage  constitutes  marriage. 
And,  Coiisentire  non  imssunt  ante  annos  niiMIes :  (Ibid.) 
They  are  not  able  to  consent  before  marriageable  years» 

MAE.RIAGE,  under  this  rule  of  the  civil  law,  is  a  civil 
contract,  such  contract  being  the  present  consent  to 
the  present  marriage,  as  differing  from  the  present  consent  to 
the  future  marriage,  of  the  parties ;  without  which  consent 
there  can  be  no  valid  marriage,  but  with  which  consent  the 
marriage  is  at  once  complete  and  indissoluble  :  and  to  give  such 
consent  the  parties  must  be  of  proper  age,  as  in  the  latter 
maxim,  otherwise  the  marriage  is  void  as  to  such  one  who  is 
not  of  such  proper  age,  at  his  or  her  election,  on  attaining  sucli 
proper  age.  The  marriageable  age  in  this  country  is  of  males 
fourteen,  and  of  females  twelve  years. 

Tliat  consent  should  constitute  marriage,  is  the  rule  adopted 
by  the  whole  human  race,  civilized  and  uncivilized,  and  this 
consent  can  be  controlled  only  by  some  infirmity  of  body  or 
mind.  Different  countries  have-  different  usages  with  regard 
to  the  ceremonies  to  be  performed  at  the  celebration  of  mar- 
riage ;  but  consent  is  everywhere,  and  only,  absolutely  neces- 
sary to  constitute  a  natural  and  legitimate  union. 

With  regard,  however,  to  the  rights  of  persons  contracting 
marriage,  and  their  offspring,  to  property,  and  the  benefits  of 
the  laws  of  the  nation  of  which  they  are  members,  those  rights 
are  governed  by  those  laws ;  and  those  laws  differ  more  or  less 
in  every  nation.  The  law  of  England,  though  treating  mar- 
riage as  a  civil  contract,  has  at  all  times,  until  recently,  re- 
quired, in  addition  to  such  contract,  the  observance  of  certain 
religious  ceremonies  in  the  celebration  of  it,  the  principal  of 
which  was  that  the  service  should  be  performed  by  a  clergy- 


54:  LEGAL     MAXIMS. 

man  of  tlie  Clmrcli  of  England,  and  also  that  the  relationship 
of  the  contracting  parties  should  be  limited  within  certain  de- 
grees of  kindred.  The  prohibited  degrees  of  kindred  are 
those  set  out  in  the  Book  of  Common  Prayer,  and  the  cere- 
monies to  be  observed  in  the  celebration  of  marriage  are  those 
also  there  set  out ;  and  they  do  now  form  part  of  the  civil  or 
common  law  of  the  country,  being  such  as  are  observed  by  the 
members  of  the  Church  of  England. 

The  Legislature  has,  however,  at  all  times  been  ready  to 
interfere  to  relieve  the  consciences  of  the  weak ;  and  for  this 
purpose  many  statutes  have  been  passed  whereby  the  ecclesias- 
tical or  religious  part  of  the  ceremony  is  rendered  unnecessary, 
and  the  marriage  is,  for  those  persons,  simply  and  truly  a  civil 
contract ;  subject  as  to  both  person  and  jDroperty,  however,  to 
the  ordinary  common  and  statute  laws  of  the  realm. 

The  law  of  marriage  in  Scotland  differs  materially  from 
that  in  England.  In  Scotland  the  present  consent,  y;e7'  verba 
de  proesenti,  serious,  deliberate,  and  mutual,  constitutes  a  valid 
and  binding  marriage.  So  does  a  future  promise  with  a  sub- 
sequent copula  connected  with  that  promise  and  taking  place 
on  the  faith  of  it,  per  verha  defuturo  siihsequente  copula ^  both 
the  promise  and  copula  must,  however,  be  in  Scotland.  And 
this  consensus  in  Scotland  may  be  proved  either  by  evidence 
of  the  actual  exchange  of  consent  or  by  the  aid  of  a  presump- 
tion of  law  ;  as,  where  there  is  proof  of  an  antecedent  promise 
of  marriage,  followed  by  copula  which  can  be  referred  to  the 
promise,  which  is  a  prcBsuraptio  juris  et  de  jure  that  at  the 
time  of  the  copula  there  was  matrimonial  consent. 


6  Co.  32;  2  Bla.  Com. ;  The  Queen  v.  Millis,  10  CI.  &  Fiu.  534-907; 
Honyman's  Case,  5  Wils.  &  S.  144 ;  Dalrymple's  Case,  3  Hag.  105 ;  Brook 
V.  Brook,  30  L.  T.  183;  Beamisli  v.  Beamish,  6  Ir.  Law  Rep.  143;  Inglis 
V.  Robertson,  3  Craigie,  S.  &  R.  58 ;  26  Geo.  3,  c.  33  ;  4  Geo.  4,  c.  76  ;  0  & 
7  Win.  4,  c.  85 ;  Hoggan  v.  Craigie,  McLean  &  Rob.  943;  Thehvall  t\ 
Yelverton,  14  Ir.  C.  L.  Rep.  188  ;  Yelvertou  x.  Lougworth,  11  L.  T.(]Sr.  !5.) 
118. 


MAXIM  XX. 


Consensus  toUit  errurem  :  (Co.  Litt.  126.) 
Consent  takes  away  error. 

THE  old  cases  given  in  illustration  of  tliis  maxim  are — 
where  dower  ad  ostium  ecclesim,  or  ex  assensu  patris,  was 
made  to  a  woman  within  the  age  of  nine  years ;  it  being  by 
consent  of  the  parties,  was  good;  so,  where  a  venire  facias 
was  awarded  to  the  coroner  when  it  ought  to  have  been  to  the 
sheriff ;  and,  where  the  jury  came  out  of  a  wrong  j^lace  ;  yet 
these  irregularities  being  by  consent  of  the  parties,  and  so  en- 
tered of  record,  the  trials  had  thereupon  were  held  good. 
Whatever  is  pleaded  and  not  denied,  shall  be  taken  as  admitted, 
and  the  jury  cannot  find  to  the  contrary ;  as,  if  the  defendant 
in  an  action  of  covenant  does  not  plead  non  est  factum^  the  ex- 
ecution of  so  much  of  the  deed  as  is  on  the  record  is  admitted. 
Suffering  judgment  by  default  is  an  admission  on  the  record 
of  the  cause  of  action  ;  as,  in  an  action  against  the  acceptor  of 
a  bill  of  exchange,  the  defendant,  by  suffering  judgment  by 
default,  admits  a  cause  of  action  to  the  amount  of  the  bill. 

On  the  sale  of  lands  and  tenements,  whenever  any  third 
person  having  any  right  or  title  to  such  lands  or  tenements 
when  about  to  be  sold,  knowing  of  his  own  title  and  of  the 
sale,  neglects  to  give  the  purchaser  notice  thereof,  he  shall 
never  after  be  permitted  to  set  up  such  right  to  avoid  the  pur- 
chase ;  for  it  was  an  apparent  fraud  in  him  not  to  give  notice 
of  his  title  to  the  intended  purchaser ;  and  in  such  case  in- 
fancy and  coverture  shall  be  no  excuse.  Again,  where  a  judge 
acts  in  a  matter  not  within  his  jurisdiction,  the  parties  attend- 
ing and  consenting,  or  not  objecting,  are  bound  by  his  decision ; 
as,  where  a  judge  made  an  interpleader  order  which  he  had  not 
authority  to  make  without  consent,  and  there  was  no  express 
consent,  but  the  parties  attended  the  hearing  and  making  the 


58  LEGAL    MAXIMS. 

order  witliout  objection,  it  was  held,  that  they  by  their  conduct 
must  be  taken  to  have  consented  to  abide  by  his  decision. 

The  practice  of  the  courts,  both  of  law  and  equity,  has  also 
at  all  times  been  in  accordance  with  this  rule,  as  a  convenient 
and  proper  mode  of  settling  disputes.  It  is  in  the  nature  of  a 
contract  between  the  parties,  and  one  which  the  courts  will 
not  willingly  disturb,  and  indeed  will  not  disturb,  if  injury  or 
loss  has  been  or  is  likely  to  be  sustained  by  one  or  other  of  the 
parties  in  consequence  of  such  consent ;  and  with  regard  to 
whicli  it  may  be  said,  "  Modus  et  conventio  vincunt  legem." 
And  indeed,  where  the  agreement  does  not  violate  any  positive 
rule  of  law,  nothing  can  be  more  consonant  with  justice  and 
natural  equity  than  that  all  parties  should  be  permitted,  by  ac- 
quiescence or  positive  agreement,  to  settle  their  disputes  with- 
out being  required  to  observe  any  particular  form  of  procedure, 
and  according  to  their  own  free  will,  and  that,  having  so  settled 
them,  should  be  bound  thereto. 

Consent  of  the  parties  will  cure  error  in  proceedings  for 
want  of  form  or  other  irregularity,  but  it  will  not  cure  a  nul- 
lity or  an  illegality.  Consent  is  as  much  given  in  standing  by 
without  objection  as  in  actual  expressed  assent.  This  rule 
should  be  cautiously  observed,  as  in  all  proceedings,  legal  or 
otherwise,  where  consent  or  refusal  is  required,  in  the  absence 
of  positive  refusal,  consent  will  be  implied;  as,  "Qui  facet 
consentire  videtur  ubi  tractatur  de  ejus  commodo " — He  who 
is  silent  seems  to  consent  where  his  advantage  is  under  consid- 
eration ;  and,  "  Qui  non  improbat,  approbat " — He  who  does 
not  blame,  approves. 

3  Inst.  27 ;  Plowd.  48 ;  Jenk.  Cent.  32  ;  5  Co.  36,  40 ;  Co.  Litt.  37,  126, 
294  ;  Shepp.  Touch.  35,  40  ;  Savage  v.  Foster,  9  Mod.  38 ;  Green  v.  Hearne, 
3  T.  R.  301;  East  India  Company  v.  Glover,  1  Stra.  612;  Martin  v.  Great 
Northern  Railway  Company,  16  C.  B.  179;  Fernival  t\  Stringer,  1  B.  N. 
C.  68;  Andrews  i\  Elliott,  6  E.  &  B.  338;  Lawrence  v.Willcock,  11  A.&E. 
941 ;  Harrison  v.  Wright,  13  M.  &  W.  816;  Carne  v.  Steer,  5  H.  &  N.  628; 
Murish  v.  Murray,  13  M.  &  W.  56. 


MAXIM  XXI. 


Contemporanea  exposltio  est  optima  et  fortissima  in  lege : 

(2  Inst.  11.) 
A  contemporaneous  exposition  is  the  best  and  strongest 

in  law. 

WIIEEE  the  language  of  a  document,  of  whatever  descrip- 
tion, is  doubtful,  its  meaning  is  best  understood  by 
reference  to,  and  consideration  of,  the  circumstances  attending 
its  original  formation. 

All  deeds,  wills,  contracts,  statutes,  &c.,  are  made  to  effect 
some  particular  object,  existing  and  in  view  of  the  parties  at 
the  time  they  are  made ;  and  the  circumstances  attending  their 
creation  are,  therefore,  the  best  guides  to  their  interpretation. 
Where,  however,  the  language  of  the  instrument  is  in  itself 
clear  and  distinct,  and  capable  of  bearing  a  rational  construc- 
tion, no  extrinsic  circumstance  of  time,  place,  person  or  thing 
will  be  permitted  to  be  adduced  in  aid  under  this  maxim  ;  for 
that  would  be  to  make  a  contract,  &c.,  for  the  parties  which,  it 
plainly  appeared,  they  themselves  had  not  made. 

The  mode  of  construing  our  Acts  of  Parliament  is  the  best 
illustration  of  this  maxim ;  and  it  is,  according  to  Lord  Coke, 
and  as  since  adopted,  as  follows : — To  consider  what  was  the 
common  law  before  the  Act,  what  the  mischief  or  defect  to  be 
remedied,  and  what  the  remedy  Parliament  had  resolved  to 
adopt  to  cure  the  miscliief  or  defect.  The  true  reason  and 
remedy  whereof  being  ascertained,  such  construction  should  be 
made  as  will  suppress  tlie  miscliief  and  advance  the  remedy ; 
avoiding  and  suppressing  subtle  inventions  and  evasions,  ad- 
vanced pro  privato  commodo,  and  giving  life  and  vigor  to  the 
remedy  proposed  ^^'o  hono publico.  The  preamble  of  a  statute 
usually  gives,  or  ought  to  give,  this  necessary  information,  and 
where  it  does  so,  it  forms  part  of  the  Act  for  the  construction 


58  LEGAL    MAXIMS. 

of  it.  To  one  unlearned  in  the  law,  it  is  absolutely  necessary 
that  he  should  look  to  the  preamble  of  a  statute  before  he  can 
understand  the  meaning  of  an  j  part  of  it ;  to  those  learned  in  the 
law,  though  proper  at  all  times  to  be  done,  yet  it  is  not  neces- 
sary where  the  language  is  plain  and  obvious.  It  must  be 
borne  in  mind  that  where  the  language  of  a  statute  is  plain 
and  obvious,  no  extrinsic  evidence  must  be  sought  for  whereby 
to  put  a  construction  upon  it,  however  much  the  words  used 
maybe  supposed  to  differ  from  the  intention  of  the  Legislature. 
For  instance,  a  judge,  having  been  intrusted  to  pre^^are  a  bill 
in  Parliament,  cannot,  where  the  consideration  of  it  comes  be- 
fore him  judicially,  refer  to  his  intention  at  the  time  of  fram- 
ing the  bill ;  for  his  intention  may  not  have  been  the  subse- 
quent intention  of  the  Legislature,  nor  the  construction  they 
put  upon  the  words  used  by  him ;  nor,  in  this  case,  can  even 
tlie  intention  of  the  Legislature  be  considered.  But,  if  any 
plain  defect  appear  upon  a  statute,  it  must  be  construed  as  it 
plainly  appears,  and  any  such  defect  must  be  remedied  also  by 
statute.  Where,  however,  the  language  of  the  statute  is  doubt- 
ful, the  intention  of  the  Legislature  is  to  be  considered,  and 
that  construction  adopted  which  those  learned  in  the  law  did 
put  upon  it  at  the  time  it  was  made,  or  which  those  learned  in 
the  law  shall  afterwards  put  upon  it  by  reference  to  the  time 
when  and  circumstances  under  which  it  was  made. 

All  documents  between  parties  will  bear  the  like  rule  of 
construction  as  Acts  of  Parliament.  The  precedents  in  the 
law  and  practice  of  our  courts  of  law  and  equity,  and  their  ap- 
plication to  constantly  recurring  similar  cases,  form  the  best 
instances  of  the  application  of  this  maxim. 


2  Inst.  11,  136,  181 ;  The  B:mk  of  England  v.  Anderson,  3  Bing.  N.  C. 
666  ;  Weld  v.  Hornby,  7  East,  195;  Gorham  v.  Bishop  of  Exeter,  5  Exch. 
630;  Barbot  «.  Allen,  7  Exch.  609  ;  Corporation  of  Newcastle  v.  Attoniey 
General  and  others,  13  CI.  &  Fin.  402;  Sharpley  «.  Overseers  of  Mable- 
thorjDe,  3  E.  &  B.  906  ;  Jones  v.  Brown,  2  Exch.  329;  Abley  v.  Dale,  11 
C.  B.  878  ;  Arnold  v.  Ridge,  13  C.  B.  763;  Drummond  v.  Attorney  General, 
2  H.  L.  Cas.  861 ;  Reg.  v.  Sillem,  11  L.  T.  (N.  S.)  223. 


MAXIM  XXII. 


Cuicunque  aJiquis  quid  conceclit,  concedere  videtur  et  id  sine 

quo  res  ipsa  esse  no7i  potuit :  (11  Co.  52.) 
The  grantor  of  anything  to  another,  grants  that  also 

without  which  the  thing  granted  would  be  useless. 

WHERE  a  lessor  excepts  trees  from  a  demise,  and  after- 
wards, during  the  continuance  of  the  lease,  wishes  to 
sell  them,  the  law  gives  to  him  and  to  the  intended  purchaser 
power,  as  incident  to  the  exception,  to  enter  and  show  the 
trees  with  a  view  to  their  sale ;  for  without  entry  none  could 
see  them,  and  without  sight  none  would  buy  them.  So  where 
a  man  seized  of  a  house  devised  it  to  a  woman  in  tail,  upon 
condition  that  if  the  woman  died  without  issue  his  executor 
might  sell ;  in  that  case  it  was  held  that  the  executor  might  by 
law  enter  into  the  house  to  see  if  it  were  well  repaired,  in  or- 
der to  know  at  what  value  to  sell  the  reversion.  So  the  law 
gives  power  to  him  who  ought  to  repair  a  bridge,  and  to  him 
who  has  a  drain  or  sewer  within  the  land  of  another,  to  enter 
upon  the  land  when  necessary  to  repair  them.  So,  again,  if 
the  owner  of  trees  in  a  wood  sell  them,  the  purchaser  may  go 
with  carts  over  the  land  of  the  owner  to  carry  them. 

In  the  grant  of  land  or  buildings,  or  a  portion  of  a  building 
— as  an  office,  or  apartments — a  right  of  way  to  it  or  them  is 
incident  to  the  grant,  as  being  directly  necessary  for  the  enjoy- 
ment of  the  thing  granted.  Also,  if  a  man  grant  a  piece  of 
land  in  the  middle  of  other  land  of  his,  he  at  the  same  time 
impliedly  grants  a  way  to  it,  and  the  grantee  may  cross  the 
grantor's  land  for  that  purpose  without  being  liable  in  trespass. 
So,  also,  the  right  to  get  and  carry  away  mines  and  other 
minerals,  water,  &c.,  and  to  do  all  things  necessary  to  their  en- 
joyment, follows  as  incident  to  the  grant  or  reservation  of  them. 

Upon  the  same  principle  is  the  maxim  relating  to  judicial 


CO  LEGAL    MAXIMS. 

autliority  :  "  Quando  aliquid  mandatur,  mandatiir  et  omnc  per 
quod  pervenitur  ad  illud" — When  anything  is  commanded, 
everything  by  which  the  thing  commanded  can  be  accom- 
plished is  also  commanded.  For,  a  sentence  of  authority  would 
be  useless  if  there  were  not  an  executive  power  to  carry  the 
sentence  into  effect.  The  maxim  is  of  universal  application, 
and  aj^plies  to  all  delegated  authority :  and  there  is,  of  course, 
no  power  upon  earth  which  is  not  delegated,  and  thus  it  is 
that,  in  pursuance  of  the  supreme  will  of  tlie  people,  laws  are 
made  by  Parliament  for  the  government  of  the  commonwealth, 
and  that  Parliament,  judges,  sheriffs,  and  other  inferior  officers 
are  in  their  several  degrees  and  offices  clothed  with  all  neces- 
sary authority  to  enable  them  to  carry  into  effect  that  supreme 
will.  The  queen,  by  virtue  of  her  authority,  calls  together 
Parliament,  who  make  laws  and  appoint  officers  to  carry  them 
into  effect ;  but  without  such  power  to  appoint  such  officers, 
and  without  such  officers  to  carry  the  laws  into  effect,  they 
would,  when  made,  be  useless.  A  practical  case  which  may  be 
given  in  illustration  of  the  maxim  is,  where  a  sheriff,  being 
resisted  by  force  in  the  execution  of  a  writ,  calls  to  his  aid  the 
j)0S8e  comitatus,  or  power  of  the  county,  in  order  to  assist  him 
in  carrying  the  law  into  effect,  and  which  by  virtue  of  his  writ 
he  is  authorized  to  do.  The  maxim,  "  Quando  aliquid  prohi- 
betur,  prohibetur  omne  per  quod  devenitur  ad  illud  " — When 
anything  is  prohibited,  everything  relating  to  it  is  also  pro- 
hibited, may  also  be  referred  to  as  illustrating  conversely  that 
cited  in  the  text. 


11  Co.  53;  5  Co.  115;  2  Inst.  48,  148;  Hob.  334;  F.  N.  B.  183;  Sliepp. 
Touch.  89 ;  Cholmondy  v.  Clinton,  2  B.  &  Aid.  625 ;  Dand  v.  Kingscote,  6 
M.  &  W.  174;  Clarauce  Railway  Company  v.  Great  North  of  England 
Railway  Company,  13  M.  &  W.  706;  Finks  v.  Edwards,  11  Exch.  775; 
Robertson  v.  Gauntlett,  16  M.  &  W.  289;  Evans  v.  Rees,  12  A.  &  E.  57; 
Hodgson  t.  Field,  7  East,  622;  Hinchcliffe  v.  Earl  of  Kinnoul,  5  Bing.  N. 
C.  1 ;  Hill  v.  Grainge,  Dyer,  130 ;  Bayley  v.  Wilkins,  7  C.  B.  886. 


MAXIM  XXIII. 


Ciiilibet  in  sud  arte'perito  est  credendum:  (Co.  Litt.  125.) 
Whosoever  is  skilled  in  bis  profession  is  to  be  believed. 

ITiyiDEISTCE  of  a  fact  relevant  to  tlie  matter  at  issue  between 
-^  tlie  parties,  within  the  personal  knowledge  of  a  witness, 
is  allowed  to  be  given  as  of  right ;  as,  where  the  witness  him- 
self stated  an  account  between  the  parties,  paid  a  sum  of  money, 
or  delivered  certain  goods.  But,  the  opinion  of  a  witness  upon 
a  fact,  or  state  of  facts,  is  only  received  when  it  comes  witliin 
the  meaning  of  this  maxim ;  as,  the  oj^inion  of  a  surgeon,  ar- 
chitect, &c.,  upon  questions  relating  to  surgery,  architecture, 
&c.  So,  where  in  an  action  the  question  was  whether  or  not 
an  embankment  erected  to  jDrevent  the  overflowing  of  the  sea 
had  caused  the  choking  up  of  the  harbor,  the  opinions  of  scien- 
tific men  as  to  the  effect  of  such  an  embankment  upon  the 
harbor  were  held  to  be  admissible.  So  a  physician,  though  he 
may  not  have  seen  the  patient,  may,  after  hearing  the  evidence 
of  others  at  the  trial,  be  called  upon  to  speak  to  the  nature  of 
the  disease  described  by  them ;  as,  whether  or  not  the  facts 
proved  are  symptoms  of  insanity ;  but  this  opinion  must  not 
go  to  the  fact  that  the  patient  is  insane,  but  merely  that  the 
symptoms  detailed  by  the  witnesses  are  those  of  insanity.  The 
opinion  of  insurance  brokers  as  to  whether  the  communication 
of  certain  facts  would  have  varied  the  tenns  of  the  insurance, 
has  been  admitted  in  actions  on  the  policy ;  but  not  in  matters 
of  mere  opinion  only ;  as  where,  in  an  action  on  a  policy  the 
opinion  of  the  broker  that,  had  certain  letters  been  disclosed 
at  the  time  of  underwriting  the  policy,  it  would  not  have  been 
underwritten,  was  sought  to  be  given  as  evidence,  this  was 
held  to  be  mere  opinion  and  not  evidence.  Where  the  ques- 
tion is  whether  or  not  a  seal  has  been  forged,  seal  engravers 
may  be  called  to  show  the  difference  between  the  impressions 


02  LEGAL    MAXIMS. 

made  by  the  original  seal  and  those  made  by  that  supposed  to 
be  forged.  So  the  opinion  of  a  student  of  the  law  of  a  foreign 
country  to  prove  that  law,  is  inadmissible,  as  being  opinion 
merely,  lie  not  being  within  this  rule  ;  though  the  opinion  of 
a  person  versed  in  the  laws  of  a  foreign  country  is  admissible. 
Evidence  of  handwriting  lies  between  proof  positive  and  scien- 
tific knoM'ledge.  Ancient  MS.  documents  may  be  proved  by  a 
witness  exp^ert  in  comparing  writing  by  the  same  author ;  but 
handwriting  generally,  must  be  proved  by  some  person  who 
has  either  seen  the  person  write,  or  who  has  such  an  acquaint- 
ance with  his  writing,  through  correspondence  acted  upon  or 
admitted,  as  leaves  no  doubt  upon  his  mind  that  the  writing 
in  question  is  that  of  the  party  by  whom  it  is  said  to  have  been 
written. 

This  maxim  may  be  properly  associated  with  that  of  "  Ad 
qusestiouem  facti  non  respondent  judices,  ad  qusestionem  juris 
non  respondent  juratores  " — To  questions  of  fact  judges,  and 
to  questions  of  law  the  jury,  do  not  answer.  The  judges,  jury, 
and  witnesses  have  each  their  special  prerogative,  but  they 
cannot  exceed  its  limits.  The  judges  apply  the  law  to  the 
facts ;  the  jury  judge  the  facts ;  but  even  they  cannot  give  an 
ojDinion  without  having  facts  whereon  to  found  their  judg- 
ment, the  truth  of  which  facts  it  is  their  special  province  to 
determine.  The  witnesses  depose  to  the  facts.  Witnesses 
are,  however,  of  two  kinds — one  deposing  to  the  facts  merely, 
and  the  other  giving  an  opinion  or  judgment  upon  the  facts 
for  the  information  of  the  jury ;  and  these  latter  are  called 
"  periti,"  who  give  their  opinion  according  to  their  skill  in 
their  profession  in  matters  of  art  and  science. 


Co.  Litt.  125;  Folkes  v.  Cliadd,  3  Doug.  157;  Campbell  v.  Richards, 
5  B.  &  Aid.  840 ;  Durrell  v.  Bederley,  Holt  N.  P.  C.  285 ;  The  Sussex 
Peerage  Case,  11  C.  &  F.  85;  Baron  de  Bode  v.  Reg.,  8  Q.  B.  208 
M'Naughten's  Case,  IOC.  &F.  200;  Chapman  ».  Walton,  10  Bing.  57 
Bristowe  v.  Sequeville,  5  Exch.  275  ;  Tracy  Peerage  Case,  10  C.  &  F.  154 
Chaurand  v.  Angerstein,  Peake  Ca.  44;  Berthon  v.  Loughman,  2  Stark 
258  ;  Doe  v.  Luckermore,  5  A.  &  E.  730. 


MAXIM  XXIV. 

Cujus  est  solum,  ejus  est  usque  ad  cazlum ;    et  ad  inferos  : 
(Co.  Lifct.  4.) 

Whose  is  the  liind,  his  is  also  that  which  is  above  aud 
below  it. 

lY  a  conveyance  of  land  witliont  exception  or  reservation 
to  the  grantor,  all  rights  incident  to  the  land  above  and 
below  the  surface  of  it  go  with  it ;  and  to  erect  anything  upon 
or  to  ]3roject  over  it,  or  to  disturb  the  soil,  water,  mines  or 
minerals  beneath  it,  is  a  trespass,  and  actionable,  and  that  with- 
out alleging  any  special  damage ;  and  as  well  at  the  suit  of  the 
occupier  as  of  the  reversioner,  supposing,  as  to  the  reversioner, 
that  the  injury  is  of  a  permanent  nature.  Land  is  nomeii  gen- 
eral issiinuui,  and  includes  the  things  above  specified  as  passing 
by  a  conveyance  of  it ;  but  in  a  conveyance  of  a  messuage  or 
the  like,  nothing  will  pass  but  what  comes,  with  the  utmost 
propriety,  within  the  terms  used. 

It  is  under  this  rule,  as  to  ad  codum,  tliat  a  man  cannot  of 
right  build  the  roof  of  his  house  so  as  to  project  over  that  of 
his  neighbor,  whether  or  not  the  doing  so  will  in  this  case  cause 
any  immediate  special  damage  to  the  neighboring  premises ; 
the  damage  in  such  case  being  the  evident  and  certain  result 
of  the  act  done,  as  the  falling  of  the  rain-water  from  the  over- 
hanging building  upon  the  adjoining  premises,  obstructing  the 
air,  jjreventing  the  building  the  house  higher,  &c.  JSTor  can 
he  even  suffer  the  boughs  of  his  trees  to  grow  in  such  a  man- 
ner as  to  overhang  the  land  of  his  neighbor.  Nor  has  he,  of 
right,  a  right  of  light  or  way  over  tlie  land  of  his  neighbor; 
and  such  right  can  be  acquired  only  by  grant  or  user.  It  is 
also  under  the  same  rule,  as  to  ad  inferos,  that  taking  away 
the  natural  support  of  the  adjoining  soil  from  a  house  or  other 
structure ;  draining  away  the  water  from  wells,  pools,  reser- 


64  LEGAL    MAXIMS, 

voirs,  &c. ;  abstracting  minerals,  and  other  acts  of  a  like  na- 
ture, are  trespasses  against  the  owner  of  the  land,  and  actiona- 
ble. 

An  exception  to  the  former  part  of  the  maxim  may  be  said 
to  be,  where  the  upper  part  of  a  building  is  granted  aw^ay  sep- 
arately from  the  remainder  or  lower  part,  which  is  frequently 
done  ;  and  to  the  latter,  where  the  minerals  are  reserved  to  the 
grantor  ;  in  both  which  cases,  the  owners  of  the  minerals  and 
of  the  upper  part  of  the  building  have  each  an  interest  in  the 
land  to  serve  the  necessary  use  and  enjoyment  of  their  respect- 
ive tenements. 

The  principle  of  the  maxim  under  consideration  is  con- 
firmed by  the  general  rule  of  common  law  relating  to  build- 
ings, which  prohibits  the  building  of  any  edifice  so  as  to  be  a 
common  nuisance,  or  a  nuisance,  prejudice,  or  annoyance  to 
any  man  in  his  house — "^dificare  in  tuo  proprio  solo  non  licet, 
quod  alteri  noceat ; "  and  is  well  shown  in  the  case  where  one 
erects  a  cornice  so  as  to  project  over,  though  not  to  touch  the 
land  of  another ;  in  which  and  similar  cases  an  action  for  tres- 
pass by  the  owner  of  the  land,  having  actual  or  constructive 
possession,  may  be  maintained.  It  is  said  that  even  holding 
the  hand  over  another  man's  land  is  a  trespass  ;  certainly,  every 
act  preventing  the  free  use  and  enjoyment  of  the  land  is  such, 
and  actionable. 

This  maxim  is  in  some  measure  connected  with  the  maxim, 
"  Sic  utere  tuo  ut  alienum  non  Isedas  ; "  and  no  person  will  be 
permitted  to  use  his  land  to  the  injury  of  his  neighbor,  but  with 
this  qualification — that  a  man  having  equal  rights  with  his 
neighbor  cannot  be  prevented  making  the  best  use  he  can  of 
his  land,  though  he  may  in  doing  so  injure  his  neighbor. 


Co.  Litt.  4,  48  ;  Shepp.  Touch.  90  ;  2  &  3  Bla.  Com. ;  2  Roll.  Abr.  565 ; 
9  Co.  53,  54;  3  Inst.  201 ;  Topham  ®.  Dent,  6  Bing.  516;  Simpson  v.  Sav- 
age, 1  C.  B.  (N.  S.)  347;  Brook  v.  Jenny,  2  Q.  B.  265;  Battishead  i\ 
Reed,  18  C.  B.  715;  Partridge  v.  Scott,  3  M.  &  W.  220 ;  Whittaker  and 
others  v.  Jackson,  11  L.  T.  (N.  S.)  155;  Humphries  v.  Brogden,  12  Q.  B. 
744 ;  Ward  v.  Robins,  15  M.  &  W.  242;  Hunt  v.  Peake,  29  L.  J.  785,  Ch.; 
Bononi  v.  Backhouse,  27  L.  J.  387,  Q.  B. 


MAXIM  XXV. 


Cum  duo  inter  se  pugnantia  rcperiuntur  in  testamento,  iilti- 

miim  ratum  est :  (Co.  Litt.  112.) 
Where  two  clauses  in  a  will  are  repugnant  one  to  the 

other,  the  last  in  order  shall  prevail. 

S  this  maxim  is  a  positive  rule  on  a  particular  subject,  it 
is  considered  of  sufficient  importance  to  be  separately 
inserted  amongst  these  maxims,  otherwise  it  would  have  been 
referred  to  the  maxim,  "Benignae  faciendce,"  etc.  It  must, 
however,  be  received  with  some  caution,  inasmuch  as  it  is  sub- 
ject to  the  general  rule  of  construction  in  wills,  by  which  the 
intention  of  the  testator  must  be  the  paramount  consideration, 
and  which  intention  must  be  gathered  from  the  wliole  tenor 
of  the  will.  To  say  thus  much,  however,  is  not  to  contradict 
the  maxim,  which  only  goes  to  show  that,  all  things  being 
equal,  the  last  of  two  contradictory  clauses  shall  be  considered 
to  be  the  testator's  last  will.  And  there  is  no  doubt  but  that 
two  apparently  contradictory  clauses  will,  if  possible,  be  rec- 
onciled so  as  to  carry  out  the  intention  of  the  testator,  and 
so  as  not  to  reject  either ;  such  contradiction,  or  apparent  con- 
tradiction, consisting  most  frequently  in  words  only,  and  not 
in  intention.  But  where  there  are  two  clauses  manifestly  re- 
pugnant to  each  other,  as  two  devises  of  the  same  thing  to 
different  persons,  then  the  maxim  holds  good,  but  not  without 
differenqe  of  opinion  as  to  how  the  several  devises  should  be 
made  to  operate : — First,  as  to  whether  or  not  the  last  devise 
is  an  absolute  revocation  of  the  first ;  second,  as  to  whether  or 
not  both  devises  are  void  for  their  repugnancy  ;  and  third,  as 
to  whether  or  not  the  devisees  should  take  in  moieties.  The 
prevailing  opinion,  according  to  the  old  autliorities,  was,  that 
both  devises  should  operate,  the  devisees  taking  in  moieties, 
and  although,  at  the  present  day,  if  any  such  intention  of  the- 
5 


Qd  LEGAL    MAXIMS. 

testator  can  be  collected  from  tlie  whole  will,  the  same  rule 
will  be  followed,  yet  the  principle  of  the  maxim  is  in  strict- 
ness carried  out  where  it  does  not  clash  with  the  paramount 
rule  of  intention  ;  in  deference  to  which,  however,  all  consid- 
erations will  be  made  to  give  way,  and  the  clause  repugnant  to 
such  intention,  whether  standing  first  or  last,  rejected ;  accord- 
ing to  the  maxim,  "  Quod  ultima  voluntas  tegtatoris  perim- 
plenda  est  secundum  veram  intentionam  suam." 

This  rule,  adopted  in  the  construction  of  wills,  is  said  to 
be  the  reverse  of  that  adopted  in  the  construction  of  deeds  ; 
in  respect  to  the  construction  of  which  latter,  it  is  said,  that 
the  words  first  in  order  shall  j)revail.  But,  it  may  be  ob- 
served, that  with  deeds  as  with  wills,  no  construction  will  be 
put  upon  them  under  this  rule  contrary  to  the  manifest  inten- 
tion of  the  parties,  as  it  is  said :  "  Voluntas  donatoris  in 
charta  doni  sui  manifesto  expressa  observanda  est ; "  and  that 
although  a  grant  by  deed  be  absolute  in  the  commencement,  it 
may  be  qualified  by  positive  intention  shown  in  a  subsequent 
part  of  the  deed. 

The  following  instance  will  show  the  caution  necessary  to 
be  observed  in  the  application  of  this  maxim.  In  a  devise, 
before  the  Wills  Act,  to  the  testator's  daughter  M.  for  life ; 
remainder  to  M.'s  first  and  other  sons  successively  in  tail ;  re- 
mainder to  the  use  of  all  and  every  the  daughter  and  daugh- 
ters of  the  body  of  M.,  as  tenants  in  common,  and  in  default 
of  sut'h  issue  to  A.  in  fee  ;  it  was  held,  that  the  daughters  of 
M.  took  estates  for  life  only,  and  also,  that  the  estates  of  the 
daughters  could  not  be  enlarged  by  a  recital,  in  a  codicil,  that 
the  testator  had,  by  his  will,  given  them  estates  tail. 


Co.  Litt.  112;  Plowd.  541;  Shepp.  Touch.  113,  253,  434,  451 ;  2  Bla. 
Com. ;  Doe  de7n.  Murch  v.  Marchant,  7  Scott  N.  R.  644 ;  Eno  v.  Tatham, 
4  Gift'.  181 ;  Morrall  v.  Sutton,  1  Phill.  536;  Sherratt  v.  Bentley,  2  M.  &K. 
157;  Plenty  v.  West,  6  C  B.  201;  Webb  a.  Bing,  28  L.  T.  133;  Earl  of 
Pottarlington  v.  Damer,  9  L.  T.  (K  S.)  565  ;  Ee  Arnold,  9  L.  T.  (N.  S.) 
530  ;  Patrick  v.  Yeathcrd,  10  L.  T.  (N.  S.)  92 ;  Robertson  r.  Powell,  9  L. 
T.  (N.  S.)  543. 


MAXIM  XXVI. 


Citrsus  curicE  est  lex  curia; :  (3  Buls.  53.) 

The  practice  of  the  court  is  the  law  of  the  court. 

THIS  applies  to  courts  of  equity  as  well  as  of  common  law, 
inferior  as  well  as  superior,  and  even  to  the  High  Court 
of  Parliament ;  but  the  practice  of  one  court  does  not  govern 
that  of  any  other ;  and  though  the  practice  of  each  court  in 
dealing  with  its  own  process  is  unlimited,  yet  it  must  only  as- 
sist, and  not  interfere  with,  to  pervert  or  nullify,  positive  stat- 
utory enactment  and  a  due  course  of  law.  That  the  practice 
of  the  court  should  be  the  law  of  the  court,  and  that  there 
should  be  such  practice  of  necessity,  is  in  accordance  with  the 
maxim,  "  Quando  aliquid  mandatur,  mandatur  et  omne  per 
quod  pervenitur  ad  illud."  The  law  would  be  of  no  avail 
without  the  means  of  carrying  it  into  effect,  and  courts  of  law 
would  be  chaos  without  rules  for  their  government. 

Not  only  must  the  court  direct  the  thing  to  be  done,  but  it 
must  direct  the  manner  of  doing  it  consistently  with  the  law. 
It  must  see  that  the  law,  according  to  the  practice  of  the 
court,  is  properly  carried  into  effect ;  and  for  that  purpose  it 
requires  returns  to  be  made  and  recorded  by  its  officers  of  the 
due  execution  of  all  its  process. 

This  power  of  the  court  over  its  process,  to  regulate  the 
manner  of  its  execution,  is  of  necessity  unlimited,  for  were 
it  otherwise,  the  process  would  be  abused  according  to  the 
fancy,  caprice,  or  malicious  design  of  eacli  suitor,  officer,  or 
other  person  interested,  or  choosing  to  be  interested  therein. 
The  course  of  procedure  upon  irregularities,  nullities, 
amendments,  and  other  informal  proceedings  is  witliin  this 
rule. 

It  will  not  be  difficult  for  the  reader  to  understand  the  im- 
portance of  this  maxim  if  he  is  himself  in  active  practice  in 


68  LEGAL    MAXIMS. 

the  several  courts  of  law  and  equity,  for  lie  will  no  doubt  have 
found  tliat  tlie  law  as  read  in  Looks  is  altogether  a  different 
thing  from  that  practiced  in  the  courts  ;  or,  rather,  it  may  be 
said,  he  will  find  that  the  adaptation  of  the  law  in  practice  to 
the  several  cases  brought  before  the  courts,  is  very  different 
from  that  which  the  mere  reader  of  law  books  would  thereby 
be  led  to  conceive.  To  judge  of  the  extent  of  tlie  applica- 
tion of  this  maxim  in  the  absence  of  practical  experience,  it 
is  only  necessary  to  look  at  Evans'  or  some  other  of  the  Law 
Digests,  under  the  head  of  "  Practice  ;  "  where  will  be  found 
what  may  be  called  the  numberless  decisions  of  the  several 
courts  and  judges  upon  the  varied  and  often  abstruse  ques- 
tions which  arise  in  the  application  of  the  law,  in  its  several 
branches,  to  the  infinite  variety  of  subjects  which  are  being 
constantly  brought  before  them ;  and  which  decisions  are,  in 
fact,  law. 

By  some  Acts  of  Parliament,  the  court  has  power  to  make 
rules  of  practice,  which  when  made  become  the  law  of  the 
court,  and  of  course  the  law  of  the  land,  as  much  so  as  the 
statute  itself  which  directed  them.  The  propriety  of  such 
delegated  authority  may  be  open  to  question,  especially  when, 
as  it  sometunes  does,  it  goes  beyond  mere  practice,  even  to 
permitting  the  changing  of  positive  law.  This  delegated  au- 
thority, even  applied  to  Parliament,  comes  within  the  rule, 
"  Delegatus  non  potest  delegare."  Public  opinion,  however, 
holds  in  so  high  esteem  the  probity  of  the  judges  of  this 
country,  that  such  acts  of  the  Legislature  are  suffered  without 
objection. 

3  Bills.  53  ?  11  Geo.  4  &  Will.  4,  c.  70,  s.  11  ;  C.  L.  P.  A.  1853,  s.  223 ; 
Cocker  v.  Tempest,  7  M.  &  W.  502 ;  Scales  v.  Cheese,  12  M.  &  W.  687; 
Stammers  v.  Hughes,  18  C.  B.  535  ;  Gregory  v.  Duke  of  B.,  2  H.  L.  C. 
415  ;  Hellish  v.  Richardson,  1  C.  &  F.  221 ;  Ferrier  v.  Howden,  4  C.  &  F. 
32 ;  Finney  v.  Beesley,  17  Q.  B.  86  ;  Edwards  v.  Martin,  21  L.  J.  88,  Q. 
B. ;  Jacobs  v.  Layborn,  11  M.  «&  W.  690 ;  Wallworth  v.  Holt,  4  My.  &  Cr. 
635 ;  Kimberly  v.  AUeyne,  2  H.  &  C.  233. 


MAXIM   XXVII. 


Defidc  et  officio  judicis  non  reciintur  qiicestio;  sed  de  scientid, 
sive  error  sit  juris  autfacti:  (Bac.  Max.  Reg.  17.) 

Of  the  good  faith  and  intention  of  a  judge  a  question 
cannot  be  entertained  ;  but  it  is  otherwise  as  to  his 
knowledge,  or  error,  be  it  in  law  or  in  fact. 

"VTO  action  will  lie  against  a  jndge  acting  judicially  for  any- 
-^^  thing  done  within  the  scope  of  his  jurisdiction ;  and 
this,  whether  he  be  a  judge  of  a  superior  or  of  an  inferior 
court ;  and  Avhether  of  record  or  not  of  record,  ecclesiastical 
or  civil.  Jiidges  are,  however,  amenable  to  the  criminal  laws, 
and  liable  to  prosecution  for  corruption,  neglect  of  duty,  and 
other  misconduct.  The  error  of  a  judge,  from  want  of  knowl- 
edge of  the  law,  the  duties  of  his  office,  or  through  mistaking 
the  facts  of  the  case,  will,  however,  be  rectified,  as  in  cases  of 
misdirection,  &c.,  by  granting  a  new  trial,  or  such  other  relief 
as  the  circumstances  of  the  case  may  require.  As,  where  the 
judge  at  the  trial  admit  improper  evidence,  or  reject  evidence 
which  ought  to  be  admitted ;  or  misdirect  the  jnry,  where 
such  misdirection  is  likely  to  influence  their  verdict ;  or  do 
not  sufficiently  direct  the  jury,  as  where  he  omit  to  give  di- 
rections as  to  the  mode  of  measuring  the  damages,  or  do  not 
recapitulate  the  evidence  where  the  trial  has  lasted  many 
days ;  or  where  he  leave  a  question  of  law  to  the  jury 
which  -he  should  himself  decide ;  in  all  which,  and  many 
other  cases  of  a  like  nature,  a  new  trial  will  be  granted  as  of 
right. 

And  generally,  as  to  the  subject  under  consideration,  it  is 
stated  that  the  Legislature  can  of  course  do  no  wrong ;  that 
the  superior  courts  of  justice  are  not  answerable,  either  as 
bodies  or  as  individual  members,  for  acts  done  within  the 
limits  of   their   jurisdiction ;    that    even  inferior  courts,  pro- 


70  LEGAL    MAXIMS. 

vided  the  law  lias  clotlied  tliem  with  judicial  functions,  are  not 
answerable  for  errors  in  judgment ;  and  where  they  may  not 
act  as  judges,  but  only  have  a  discretion  confided  to  them,  they 
shall  not  answer  for  an  erroneous  exercise  of  that  discretion, 
however  plain  the  miscarriage  may  be,  and  however  injurious 
its  consequences.  And  this  follows  fi'oni  the  very  nature  of 
the  thing ;  being  implied  in  the  nature  of  judicial  authority, 
and  in  the  nature  of  discretion  where  there  is  no  such  author- 
ity. But  Avhere  the  law  neither  confers  judicial  power  nor 
discretion,  but  requires  certain  things  to  be  done,  everybody  is 
bound  to  obey,  and,  with  the  exception  of  the  Legislature  and 
its  branches,  everybody  is  liable  for  the  consequences  of  dis- 
obedience, and  this  constitutes  the  distinction  between  a  minis- 
terial and  a  judicial  office. 

It  should  be  observed,  that  in  order  to  protect  a  judge  in 
the  performance  of  even  a  judicial  act,  it  is  necessary  that  he 
be  so  acting  within  the  limits  of  his  jurisdiction ;  and  there- 
fore it  is  that  in  all  courts  of  record  and  not  of  record,  supe- 
rior and  inferior,  it  is  usual  and  necessary  clearly  to  show, 
upon  the  face  of  the  proceedings,  the  jurisdiction  of  the  court 
or  judge  to  act  in  the  matter  in  question.  This  is  particularly 
shown  in  proceedings  by  magistrates,  as,  for  example,  in  con- 
victions ;  the  order  must  distinctly  show  upon  the  face  of  it 
all  the  facts  necessary  to  constitute  the  offense  and  to  give  the 
•  justices  authority  to  deal  with  it.  It  is  indeed  said  that,  how- 
ever high  the  authority,  where  a  statutory  power  is  exercised, 
the  person  acting  must  take  care  to  bring  himself  within  the 
terms  of  the  statute.  And  whether  an  order  be  made  by  the 
Lord  Chancellor  or  a  justice  of  the  peace,  the  facts  which  gave 
him  jurisdiction  must  be  stated. 


Bac.  Max.  Eeg.  17;  13  Co.  24,  25;  2  Salk.  649;  How  r.  Strode,  2  Wils. 
269;  Garnett  v.  Ferrand,  6  B.  «fc  C.  611;  Barry  v.  Arnaud,  10  A.&E.  646; 
Ferguson  v.  Earl  of  Kinnoul,  9  C.  &  F.  251;  Lord  Trimlestown  r.  Kem- 
mis,  9  C.  &  F.  749;  Ecg.  v.  Badger,  4  Q,  B.  468;  Dicas  v.  Lord  Brougiiam, 
6  C.  &  P.  249  ;  Newbould  v.  Coltman,  6  Exch.  189  ;  Smedley  v.  Hill,  2 
W.  Bl.  1105 ;  Hadley  v.  Baxendale,  23  L.  J.  179,  Ex. ;  Christie  v.  Unwin, 
11  A.  &  E.  379  ;  Day  v.  King,  5  A.  &  E.  366  ;  Reg.  v.  Johnson,  8  Q.  B. 
106. 


MAXIM  XXVIII. 


Be  minimis  non  curat  lex:  (Oro.  Eliz.  353.) 
Of  trifles  the  law  does  not  coucern  itself. 

r  I IHIS  is  shown  in  the  refusal  of  the  courts  to  grant  new 
-^  trials  iu  trifling  cases,  or  where  the  damages  are  small ; 
in  disconntenancing,  and  even  refusing  to  try,  trifling  actions ; 
in  amending  proceedings  for  defect  in  form,  or  trifling  irreg- 
ularities ;  in  putting  a  reasonable  construction  upon  the  law, 
and  in  discouraging  litigation  upon  mere  technicalities.  Courts 
of  equity  will  not,  as  a  rule,  entertain  a  suit  where  the  amount 
of  property  in  question  is  under  200^.,  nor  will  they  allow  a 
bill  to  be  filed  where  the  matter  in  question  does  not  exceed 
10^.  The  superior  courts  of  common  law  will  not  try  an 
action  of  debt  under  40^. ;  and  in  actions  for  damages  merely, 
and  not  to  try  a  right,  they  mark  the  light  in  which  they  view 
trifling  suits  by  refusing  costs  to  the  successful  party  where 
the  circumstances  of  the  case  require  them  so  to  do.  Where 
the  action  is  in  damages,  the  question  of  costs  is  regulated  by 
various  statutes,  as  for  example : — By  statute  43  Eliz.  c.  6,  it 
is  enacted  that  where  the  debt  or  damage  does  not  exceed  40.s. 
the  plaintiff  shall  not  be  entitled  to  more  costs  than  damages ; 
by  statute  3  &  4  Yict.  c.  24,  that  he  shall  not  be  entitled  to 
any  costs  in  trespass  or  case  where  4:0s.  only  shall  be  recovered, 
unless  tlie  judge  certify  that  the  action  w^as  to  try  a  right,  or 
that  the  trespass  or  grievance  was  willful  and  malicious ;  and 
by  23  &  24  Yict.  c.  120,  that  where  the  plaintiff,  in  an  action 
in  the  superior  courts  for  an  alleged  wrong,  recovers  less  than 
hi.,  he  shall  not  recover  any  cods  in  case  the  judge  certify  that 
the  action  was  not  to  try  a  right,  or  that  the  tresjiass  or  griev- 
ance in  respect  of  which  the  action  was  brouglit  was  not  will- 
ful and  malicious,  and  that  the  action  was  not  fit  to  be  brought, 
and  so  in  like  cases. 


72  V      LEGAL    MAXIMS. 

It  was  upon  this  principle  that  the  county  courts  were 
established  to  try  trifling  actions,  first,  to  the  extent  of  40*., 
next  of  20Z.,  and  now  of  601.  And,  as  to  costs,  allowing  to 
the  successful  party :  under  40^.,  nothing ;  under  20L,  next  to 
nothing ;  and  above  20Z.,  a  mere  trifle.  So  no  appeal  is  al- 
lowed in  those  courts  where,  in  debt  and  interpleader  the 
amount  claimed,  in  replevin  the  rent  or  damage,  and  in  re- 
covery of  tenements  the  yearly  rent  or  value,  does  not  exceed 
201. 

Where  there  is  any  miscarriage  or  damage  by  default  of  a 
judge,  however,  the  courts  are  careful  to  interfere  in  the  most 
trifling  cases,  and  will  grant  new  trials  for  the  improper  recep- 
tion of  the  smallest  particle  of  evidence,  or  for  misdirection, 
in  the  most  trifling  cases,  where  the  justice  of  the  case  requires 
it.  But  the  court  will  not,  as  a  general  rule,  grant  a  new  trial 
in  an  action  for  tort  on  account  of  the  smalhiess  of  the  dam- 
ages ;  and  they  have  refused  to  grant  it  where,  in  an  action 
against  a  surgeon  for  negligence,  whereby  the  plaintiff  lost  his 
leg,  the  jury  only  gave  nominal  damages.  So  the  court  will 
not  grant  a  new  trial  where  the  value  of  the  matter  in  dis- 
pute, or  the  amount  of  damages  to  which  the  plaintiff  would 
be  entitled,  is  too  inconsiderable  to  merit  a  second  trial. 

By  the  Stamp  Acts,  legacies  under  201.  are  exempt  from 
duty ;  so,  under  the  Savings  Bank  Acts,  administration  need . 
not  be  taken  out  for  sums  less  than  50?. ;  the  interests  of  the 
revenue  being  in  such  trifling  cases  disregarded.  The  Court 
of  Chancery,  also,  will  pay  out  sums  of  money  and  shares 
of  estates  without  administration  where  they  do  not  amount 
to  201. 


Cro.  E'iz.  353  ;  2  Bla.  Com. ;  9  &  10  Vict.  c.  95 ;  13  &  14  Vict.  c.  61 ; 
Kennard  v.  Jones,  4  T.  R.  495 ;  Wilson  v.  Rastall,  4  T.  R  753 ;  Wellington 
1'.  Arters,  5  T.  R.  64 ;  Hayne  v.  Davey,  4  A.  &  E.  892 ;  Boosey  v.  Purday, 
4  Exch.  145;  Branson  v.  Didsbury,  12  A.  &  E.  631 ;  Manton  v.  Bales,  1 
C.  B.  444 ;  Hawkins  ».  Alder,  18  C.  B.  640 ;  Marsh  v.  Bower,  2  W.  Bl.  851 ; 
Rochdale  C.  C.  v.  King,  14  Q.  B.  122;  Reg.  v.  Betts,  16  Q.  B.  1022;  Hin- 
nings  V.  Hinuings,  10  L.  T.  (N.  S.)  294;  Gibbs  v.  Turmaley,  1  C.  B.  640; 
Jones  V.  Tatbam,  8  Taunt.  634. 


MAXIM  XXIX. 


De  non  apparentibus  et  7ion  existentihus,  eadem  est  ratio  :  (5 

Co.  6.) 
Of  things  which  do  uot  appear,  and  things  which  do  not 

exist,  the  rule  in  legal  proceedings  is  the  same. 

r  I  lIIIS  rule  is  of  special  application  to  courts  of  law,  both 
-■-  civil  and  criminal,  which  refuse  to  take  cognizance  of  any 
matter  not  properly  before  them.  As,  in  affidavits,  pleadings, 
records,  warrants,  orders,  &c.,  whatever  does  not  appear  upon 
the  face  of  the  document  is  deemed  as  not  existing,  and  no 
presumption  to  the  contrary  will  be  entertained.  This  rule,  in 
strict  construction,  however,  has  reference  chiefly  to  criminal 
proceedings  and  other  acts  of  a  j)ublic  nature :  as,  where  a 
warrant  for  the  apprehension  of  any  person,  or  for  his  im- 
prisonment, omits  to  state  the  cause,  in  which  case,  no  cause 
appearing  upon  the  warrant,  the  apprehension  or  detention  is 
in  such  case  unlawful.  There  are,  notwithstanding,  some  cases 
which  seem  to  contradict  this  rule ;  as,  for  example,  evidence 
will  be  admitted  to  explain  a  latent  ambiguity  in  a  deed  or 
other  document  between  parties  with  a  view  to  support  it.  So 
where  a  deed  is  defective  for  want  of  consideration ;  as,  where 
a  deed  operating  under  the  statute  of  uses  omits  to  recite  a 
consideration,  the  parties  interested  in  supporting  it  may  show 
a  sufficient  pecuniary  consideration  not  inconsistent  with  the 
deed.  So  in  a  guaranty,  when  the  consideration  was  required 
to  appear  upon  the  face  of  the  instrument,  where  the  consid- 
eration was  ambiguously  ex]3ressed  as  implying  either  a  jDast  or 
future  consideration,  parol  evidence  was  allowed  to  show  that 
the  consideration  was  future.  There  are  also  matters  of  which 
the  courts  will  take  judicial  notice  without  proof,  as  public 
general  statutes,  the  course  of  proceedings  in  Parliament,  the 
privileges  of  the  House  of  Commons,  the  seals  of  State,  public 


74  LEGAL     MAXIMS. 

proclamations,  tlie  Gazette  as  to  acts  of  State,  judgments  in 
rem,  the  jurisdiction  of  the  several  superior  courts,  the  privi- 
leges of  their  officers,  their  records,  and  many  others  of  a  like 
nature. 

Another  rule  having  reference  to  the  one  under  considera- 
tion, and  particularly  applicable  to  criminal  cases,  is  "  Quod 
non  apparet  non  est,  et  non  apparet  judicialiter  in  isto  casu 
ante  judicium  " — That  which  appears  not,  is  not,  and  apj^ears 
not  in  the  case  judicially  before  judgment.  In  accordance  with 
which  it,  is  stated  that  a  man  cannot  be  punished  for  a  second 
offense  before  he  be  adjudged  for  the  first ;  and  that  the  second 
offense  must  be  committed  after  judgment  given  for  the  first ; 
nor  for  the  third  before  he  be  adjudged  for  the  second ;  and 
that  the  third  must  be  committed  after  the  judgment  for  the 
second ;  for  "  Multiplicata  transgressione,  crescat  pcense  in- 
flictib." 

It  may  be  said  that  the  maxim  under  consideration  is  con- 
tradictory of  the  rule,  "Id  certum  est  quod  certum  reddi 
potest " — That  is  certain  which  can  be  made  certain ;  but  it  is 
not  so,  for  the  application  of  this  last  rule  prevents  the  neces- 
sity for  the  application  of  the  one  under  consideration,  by  the 
production  of  the  evidence  necessary  to  establish  the  fact 
sought  to  be  proved.  Again,  the  rule  "  Id  incertum  est,  quod 
certum  reddi  nuUo  modo  potest" — That  is  uncertain  which 
cannot  be  made  certain,  may  be  used  in  support  of  the  princi- 
pal maxim ;  for,  that  which  is  in  itself  uncertain  cannot  by  it- 
self be  made  certain ;  nor  can  that  which  is  in  fact  uncertain 
by  possibility  be  made  certain;  as,  an  event  not  within  the 
control  of  human  power. 


i  Co.  176  ;  4  Co.  G6;  5  Co.  6;  9  Co.  47;  Co.  Litt.  45,  96;  2  Inst.  470; 
Tregany  v.  rietcher,  1  Ld.Raym.  154;  Ogle  v..  Norcliflfe,  2  Ld.  Raym.  869; 
Bishop  of  C,  1  T.  R.  409;  Jenk.  Cent.  207;  Dupay  v.  Sh.^pherd,  12  Mod. 
206;  Van  Omeron  ».  Dowick,  2  Camp.  43;  Tancred  v.  Christy,  12  M.  & 
W.  316;  Edwards  v.  Jevons,  8  C.  B.  436;  Lake  v.  King,  1  Saund.  131; 
Stockdale  v.  Hansard,  9  A  &  E.  1 ;  Sims  ».  Marryatt,  17  Q.  B.  281 ;  8  &  9 
Vict.  c.  113,  s.  3;  IS'  &  14  Vict.  c.  31,  s.  7;  14  &  15  Vict.  c.  99. 


MAXIM  XXX. 


Dies  Dominicus  non  est  juridiciis :  (Co.  Litt.  135 ) 
The  Lord's  day  (Sunday )  is  not  juridical,  or  a  day  for 
legal  proceedings. 

"IVTOIS^E  of  the  courts  of  law  or  equity  can  sit  upon  this  day ; 
-^^  nor  is  the  execution  of  any  civil  process,  nor  the  per- 
formance of  any  works,  save  of  necessity  or  charity,  lawful. 
An  exception  to  the  rule,  however,  is,  that  hail  may  take  their 
principal.  So,  also,  the  defendant  may  be  retaken  after  an 
escape,  if  it  be  negligent  or  without  the  consent  or  knowledge 
of  the  sheriff  or  officer.  Arrests,  also,  in  criminal  cases,  as  for 
treason,  felony,  or  breach  of  the  peace,  and  all  proceedings  and 
acts  necessary  for  the  immediate  protection  and  safety  of  the 
State,  may  be  considered  excej)tions — indeed  they  are  most  of 
them  so  made  by  statute. 

The  days  in  reference  to  legal  proceedings  are  distinguished 
by  the  terms  "  dies  juridici "  and  "  dies  non  juridici ;  "  and 
"  dies  juridici "  are  those  having  especial  reference  to  those 
days  only  whereupon  judicial  proceedings  are  had  in  the  su- 
perior courts  ;  therefore  "  dies  juridici "  are  in  term  only,  ex- 
cept at  the  assizes ;  and  "  dies  non  juridici "  are  those  days 
which  are  not  in  term,  including  also  the  Lord's  day,  and  such 
other  saint  days  as  are  within  the  term,  which  formerly  were 
many,  but  of  which  now  only  few  are  observed  as  "  dies  non 
juridici,"  those  which  are  observed  as  such  being — in  Easter 
term,  the  days  intervening  the  Thursday  before  and  the 
Wednesday  next  after  Easter  day,  if  they  fall  within  the  term 
as  fixed  by  statute ;  and  in  the  other  terms,  any  Sundays  fall- 
ing within  the  several  terms. 

A  legal  process,  as  a  writ  of  sunnnons  or  of  execution,  bear- 
ing date  or  returnable  on  a  Sunday  is  irregular  and  void  ;  nor 
can  such  writ  of  summons  or  of  execution  be  served  or  put 


76  LEGALMAXIMS. 

into  force  upon  a  Sunday ;  nor  will  an  attachment  be  granted 
for  non-payment  of  money  awarded  to  be  paid  on  a  Sunday ; 
nor  can  an  attachment  be  executed,  nor  an  affidavit  sworn,  nor 
rule  nisi  served  on  a  Sunday. 

All  contracts  made  on  a  Simday  or  to  be  performed  on  a 
Sunday  are  void  as  to  parties  and  privies,  but  not  as  to  an 
innocent  party.  In  ordinary  business  matters,  where  anything 
is  agreed  to  be  done  within  a  certain  time,  Sunday  is  to  be 
counted ;  therefore,  if  a  bill  of  exchange  become  due  on  a  Sun- 
day, it  must  be  advised  on  the  Saturday  previously ;  or  if  a 
notice  has  to  be  served  expiring  on  Sunday,  it  must  be  served 
on  the  Saturday  preceding. 

In  computation  of  time  in  legal  proceedings  Sunday  is  or- 
dinarily reckoned,  unless  it  is  the  last  day,  when  the  following 
day  is  allowed  to  the  party  required  to  take  the  step.  It  is 
included  in  the  time  allowed  for  appeal,  and  in  the  eight  days 
allowed  for  appearance  on  a  writ  especially  indorsed  in  case  of 
default.  Many  statutes  have  been  passed  to  prevent  Sunday 
labor,  the  chief  of  which  is  the  29  Car.  2,  c.  7,  which  enacts 
that  no  tradesman,  artificer,  workman,  laborer,  or  other  person 
whomsoever,  shall  do  or  exercise  any  worldly  labor,  business, 
or  work,  or  their  ordinary  callings  on  Sunday. 

The  passenger  traffic  on  railways  and  in  cabs,  the  keeping 
open  of  public  houses,  and  such  like,  are  considered  works  of 
necessity,  and  they  are  permitted  either  by  the  common  law  or 
by  statute,  with  certain  restrictions.  Some  notices,  also,  are 
required  by  statute  to  be  fixed  on  church  doors  on  the  Sunday. 

It  appears  not  to  be  a  good  defense  to  an  attorney's  bill 
that  the  business  was  done  on  a  Sunday. 


Co.  Litt.  135;  2  Saund.  391;  Anon.  6  Mod.  231;  Noy's  Max.  2;  2  Ld. 
Raym.  1028;  29  Car.  2,  c.  7;  Fennell  v.  Ridler,  8  D.  ife  R.  204;  Bloxome 
V.  Williams,  3  B.  &  C.  232;  Taylor  v.  Phillips,  3  East,  155;  Rex  t.  Myers, 
1  T.  R.  2G5;  Phillips  v.  Innes,  4  C.  &  F.  234;  RaAvlins  r.  Overseers  of 
W.  D.,  2  C.  B.  72;  Fcathcrstonhaulgh  v.  Atkinson,  Barnes,  373;  Peate  v. 
Dicken,  3  Dowl.  171;  M'lleham  v.  Smith,  8  T.  R.  8G;  Wright  v.  Lewis,  9 
Dowl.  183. 


MAXIM  rxxi. 


Domiis  Sim  quiqiie  est  tiitissimiim  refugium :  (5  Co.  91.) 
To  every  one,  bis  house  is  his  surest  refuge ;  or,  every 
man's  house  is  his  castle. 

UNDER  this  maxim,  a  man's  house  is  a  refuge  for  him 
against  a  Ji.  fm.^  ca.  sa.,  or  distress  warrant,  as  neitlier 
slieriff  nor  landlord  can  under  such  process  justify  hreaking 
into  his  house  to  take  him  or  his  goods.  His  house  is  not, 
however,  a  defense  for  him  in  criminal  proceedings ;  as,  under 
a  warrant  at  the  suit  of  the  queen ;  and  the  sheriif  may,  in 
either  civil  or  criminal  proceedings,  break  into  a  house  to  re- 
take after  an  escape ;  as  also  may  a  landlord  after  distress 
made  and  eviction,  if  the  re-entry  be  made  within  a  reasonable 
time.  In  all  such  cases  of  breaking  in,  however,  demand  of 
admission  must  first  be  made,  with  notice  of  the  cause  for 
whicii  admission  is  required ;  and  this  feature  establishes  the 
principle  of  this  maxim. 

Four  points  are  to  be  considered  with  reference  to  the 
maxim: — First,  tliat  the  house  of  every  one  is  his  castle,  as 
well  for  defense  against  injury  as  for  liis  repose ;  so  that  if 
thieves  come  to  a  man's  house  to  rob  or  murder  him,  and  he 
or  his  servants  kill  any  of  them  in  defense  of  himself  or  his 
house,  this  is  no  felony,  and  he  shall  not  be  damnified  thereby  ; 
and  so  may  he  assendjle  his  friends  and  neighbors  to  protect 
his  house  against  violence.  Second,  that  where  the  queen  is 
a  party  to  a  suit  or  proceeding,  the  doors  being  shut  and  fast- 
ened, tlie  sheriff  may  break  open  tlie  doors,  after  having  first 
made  demand  of  admission  and  signified  the  cause  of  his  com- 
ing, but  not  otherwise ;  for,  until  demand  and  refusal  tlicre 
would  be  no  default  in  the  owner  of  the  house,  for  lie  might 
not  know  of  tlie  suit  or  proceeding,  and  it  is  to  be  presumed 
that  had  he  known  lie  would  have  obeyed  it,  and  there  is  no 


78  LEGAL    MAXIMS. 

law  to  prevent  a  man  closing  the  doors  of  his  own  house. 
Also,  if  a  sheriff  l)reak  the  doors  or  effect  a  forcible  entrance 
otherwise,  when  he  might  enter  without,  he  is  a  trespasser.  A 
demand  in  ejectment,  however,  after  judgment  recovered,  is 
not  necessary ;  for,  by  the  judgment,  the  house  is  not  that  of 
the  defendant,  but  of  the  plaintiff ;  and  in  such  case  the  sheriff 
may  break  in  and  deliver  possession  to  the  plaintiff,  the  words 
of  the  writ  being,  "  habere  facias  possessionem."  Third,  that 
in  all  cases  where  the  door  is  open,  the  sheriff  may  enter  the 
house  and  do  execution  at  the  suit  of  any  subject,  either  of 
the  body  or  goods  ;  and  so  may  a  landlord  enter  and  distrain 
for  rent ;  but  otherwise  where  the  door  is  not  open  :  for  were 
this  not  so,  no  man's  house  would  be  safe  from  false  pretense 
at  the  instigation  of  any  one,  and  for  any  purpose.  Fourth, 
that  a  man's  house  is  not  a  castle  or  privilege  for  any  one  but 
himself,  his  family,  and  his  own  proper  goods,  and  will  not 
protect  any  one  who  has  fled  to  his  house  for  protection,  or 
whose  goods  are  found  there,  from  lawful  execution  or  ordinary 
process  of  law ;  and  that  is  so  by  common  law  and  by  statute. 

There  are,  however,  cases  by  statute  where  a  man's  house  is 
not  a  protection  against  civil  process.  An  instance  of  this  is 
where  a  tenant  clandestinely  removes  goods  from  the  demised 
premises  to  avoid  a  distress  for  rent ;  the  landlord  being  in 
such  case  authorized  by  statute  to  follow  the  goods  within 
thirty  days*  after  their  removal,  and  to  seize  them  wherever 
they  may  be  found,  breaking  into  any  dwelling-house  or  other 
place  where  they  may  be,  or  be  reasonably  supposed  to  be. 

Semayne's  Case,  5  Co.  91 ;  Burdett  v.  Abbot,  14  East,  156;  Delaney  v 
Fox,  1  C.  B.  166;  Eyan  v.  Shilcock,  7  Exch.  73;  Smith  v.  Shirley,  3  C.  B 
142;  Loyd  v.  Sandilands,  8  Taunt.  250;  Duke  of  B.  v.  Slowman,  8  C.  B 
317;  Curlewis  v.  Laurie,  12  Q.  B.  640;  Pugli  v.  Griffith,  7  A.  &  E.  827 
Williams  v.  Roberts,  7  Exch.  618-630;  Johnson  v.  Leigh,  6  Taunt.  246 
Cooke  V.  Birt,  5  Taunt.  765 ;  Cook  v.  Clark,  10  Bing.  21  ;  Morrish  v 
Murray,  13  M.  &  W.  52;  8  Ann,  c.  14;  11  Geo.  2,  c.  19. 


MAXIM   XXX 11. 


Ex  antecedentihus  et  consequentibus  fit  optima  interjirctatio : 
(2  Inst.  317.) 

From  that  wliicli  goes  before,  and  froiri  that  which  fol- 
lows, is  derived  the  best  iuterpretatiou. 

THIS  maxim  ap23lies  to  the  construction  to  be  put  upon 
written  instruments,  as  deeds,  contracts,  wills,  statutes, 
<fcc.,  and  may  be  considered  as  having  a  close  connection  with 
the  maxim,  "  Benignae  faciendae,"  &c. 

Probably  the  best  illustration  of  the  maxim  will  be  the 
following : — Where  one  seized  of  a  manor  and  of  a  tenement 
in  fee  simple,  and  possessed  also  of  a  lease  for  years  in  the 
town  of  "  Dale,"  by  deed  granted  to  another  the  manor,  tene- 
ment and  all  other  the  lands  and  tenements  which  he  had  in 
Dale  ;  it  was  considered  that  the  term  of  years  would  not  pass, 
but  only  the  lands  in  which  the  grantor  had  an  estate  of  in- 
heritance ;  the  words  used  in  the  grant  being,  enfeoff,  give, 
grant,  &c.,  the  manor  and  all  the  grantor's  other  lands  and 
tenements;  hahendum,  to  the  grantor  and  his  heirs;  there 
being  an  express  covenant  on  the  part  of  the  grantor  that  he 
was  seized  in  fee  of  all  of  the  said  lands,  and  that  he  had  an 
estate  in  fee  in  all  the  lands  intended  to  be  thereby  granted, 
&c. :  that  the  general  words,  "  all  his  other  lands,"  could  not 
be  intended  to  comprise  the  leasehold,  because  that  was  of  a 
nature  different  from  the  lands  before  mentioned,  and  general 
words  would  not  be  enlarged,  but  would  be  considered  with  ref- 
erence to  the  whole  deed.  Also,  where  the  predecessor  of  a 
bishop  had  made  a  lease  of  his  house  and  the  site  thereof,  and 
of  certain  particular  closes  and  demesnes  by  particular  names, 
and  of  all  other  his  lands  and  demesnes ;  upon  wliich  it  was 
questioned  whether  an  ancient  park  and  copyhold  land  there 
should  pass;    it  was  held  that  neither  of   them  did  pass  by 


80  LEGAL    MAXIMS. 

those  latter  general  words,  for  tliat  neitlier  the  park  nor  the 
copyholds  could  be  intended  for  demesnes,  and  that  in  such 
cases  a  grant  should  not  be  construed  by  any  violent  construc- 
tion ;  and  therefore  it  was  said  that  "  ex  prcecedentibus  et  con- 
sequentibus  optima  fiat  interpretatio,"  and  that  "  benignse  faci- 
endae  sunt  interpretationes."  So,  also,  where  one  levies  a  fine  of 
a  manor  to  which  an  advowson  is  appendant,  cum  pertinentiis, 
the  advowson  will  pass ;  but  if  the  advowson  were  not  specially 
named,  or  yet  cum  pertiyientiis,  the  advowson  would  not  pass. 
It  is  said  to  be  a  true  rule  of  construction  of  written  instru- 
ments, so  to  construe  them  that  the  sense  and  meaning  of  the 
parties  may  be  collected  "  ex  antecedentibus  et  consequenti- 
bus,"  and  so  that  every  part  of  them  may  be  brought  into  ac- 
tion, in  order  to  collect  from  the  whole  one  uniform  and  con- 
&istent  sense,  if  that  may  be  done.  And  so,  in  this  view, 
recitals,  though  they  form  no  necessary  part  of  the  deed,  as 
such,  yet  aid  in  its  construction;  and  an  unqualified  recital 
in  a  deed  will  be  referred  to  to  determine  the  extent  to 
which  a  vendor  is  bound  by  the  general  words  of  his  cove- 
nant, where  the  operative  part  is  insufficient  for  that  purpose. 
But  where  the  operative  part  of  a  deed  is  express,  as,  for  in- 
stance, where  the  description  in  the  parcels  of  the  premises  to 
be  conveyed  is  perfect  and  complete  in  itself,  the  subsequent 
general  words  will  be  limited  thereto. 


2  Inst.  317;  Plowd.  Com.  106;  Wing.  Max.  167;  Com.  Dig.  Advo-o-- 
son,  B. ;  Bac.  Abr.  Grants,  1,  4  ;  Turpine  v.  Forrequer,  1  Bulst.  99 ;  Win. 
93;  Shepp.  Touch.  76,  86,  87,  353,  n. ;  Barton  v.  Fitzgerald,  15  East,  580; 
Doe  dem.  Meyrick  v.  Meyrick,  2  Cr.  &  J.  223 ;  Arundell  v.  Arundell,  1  My. 
&  K.  316 ;  Walsh  v.  Trevanion,  15  Q.  B.  751 ;  Foley  v.  Parry,  2  My.  &  K. 
138 ;  Morrall  v.  Sutton,  1  Phill.  536 ;  R.  v.  Poor  Law  Com.  6  A.  &  E.  7  ; 
Hesse  v.  Stevenson,  3  B.  &  P.  574 ;  Spencer  v.  Thompson,  6  Ir.  Law  Rep. 
537. 


MAXIM  XXXIII. 


JEx  dolo  malo  non  oritur  actio  :  (Cowp.  341.) 
Eroai  fraud  a  right  of  action  does  not  arise.* 

A!N^  action  cannot  be  maintained  by  any  of  the  parties  or 
privies  to  it,  upon  an  illegal,  immoral,  or  fraudulent 
contract,  whether  by  parol  or  by  deed,  nor  in  respect  of  any 
matter  arising  directly  out  of  it ;  as,  where  the  consideration 
for  an  agreement  to  pay  money  is  a  compromise  of  felony,  or 
other  obstruction  or  interference  with  the  administration  of 
public  justice.  In  such  cases  the  contracts  are  null  and  void, 
as  being  contrary  to  the  policy  of  the  law. 

In  reference  to  this  maxim  Lord  Mansfield  says :  The  ob- 
jection that  a  contract  is  immoral  or  illegal,  as  between  tlie 
plaintiff  and  defendant,  sounds  at  all  times  ill  in  tlie  mouth  of 
the  defendant.  It  is  not  for  his  sake,  however,  that  the  objec- 
tion is  ever  allowed ;  but  it  is  founded  in  general  principles  of 
policy  which  the  defendant  has  the  advantage  of;  contrary  to 
the  real  justice,  as  between  himself  and  the  plaintiff ;  by  acci- 
dent as  it  were.  The  principle  of  public  policy  is  this: — "Ex 
dolo  malo  non  oritur  actio."  'No  court  will  lend  its  aid  to  a 
man  who  founds  his  cause  of  action  upon  an  immoral  or  an  il- 
legal act.  If,  from  the  plaintiff's  own  statement  or  otherwise, 
the  cause  of  action  appears  to  arise  ex  turpa  causa,  or  the  trans- 
gression of  a  positive  law  of  this  country,  there  the  court  says 
he  has  no  right  to  be  assisted.  It  is  upon  that  ground  the  court 
goes ;  not  for  the  sake  of  tlie  defendant,  but  because  they  will 
not  lend  their  aid  to  such  a  plaintiff.  So,  if  the  plaintiff  and 
defendant  were  to  change  sides,  the  now  plaintiff  would  then 
have  the  advantage ;  for  where  both  are  equally  in  fault, 
"potior  est  conditio  defendentis." 

In  an  action  for  the  price  of  goods  sold  abroad  for  shipment 
into  England,  the  import  of  which  into  England  was  prohibited, 
6 


82  LEGAL    MAXIMS. 

and  which  the  vendor  at  the  time  of  sale  knew,  but  in  effecting 
which  shipment  he  rendered  no  assistance ;  he  was  held  entitled 
to  recover.  But  where  the  vendor  of  goods  sold  abroad,  to  be 
smuggled  into  this  country,  knowingly  assists  in  the  design  to 
smuggle  ;  as  by  packing  them  up  in  a  particular  way,  or  in  any 
other  manner  aids  in  the  illegal  act ;  he  will  not  be  allowed  to 
sue  in  this  country  upon  a  contract  for  the  value  of  the  goods. 

A  bond  given  as  an  indemnity  against  a  note  given  by  the 
obligee  to  induce  the  prosecutor  in  an  indictment  for  perjury 
to  withhold  his  evidence,  is  void  ab  initio. 

The  plaintiff  in  an  action  upon  a  bill  of  exchange  given  to 
him  to  compromise  a  felony  cannot  recover ;  nor  yet  can  a 
plaintiff  recover  in  an  action  for  conspiracy  by  the  defendant 
and  another  to  obtain  payment  from  him  of  a  bill  accepted  by 
him  in  consideration  that  the  defendant  would  abstain  from 
prosecuting  such  third  party  for  embezzlement.  ]^or,  again, 
upon  a  contract  to  indemnify  an  officer  of  justice  against  re- 
fraining from  doing  his  duty ;  as  a  sheriff  or  his  officer,  or 
other  officer  of  justice,  to  permit  a  prisoner  to  escape,  or  to 
violate  or  neglect  his  duty  in  any  manner ;  or  to  protect  him 
from  the  consequences  of  his  misconduct ;  or  to  indemnify 
one  against  doing  any  unlawful  act,  as  to  assault  another.  All 
contracts  against  public  policy ;  as  of  bribery,  champerty,  sti- 
fling evidence,  and  other  interference  with  the  due  adminis- 
tration of  the  law,  are  void. 

The  illegality  of  an  instrument  may  either  appear  upon  the 
face  of  it  or  be  proved  by  extrinsic  evidence.  When  it  appears 
upon  the  face  of  it,  it  is  at  once  fatal  to  an  action  upon  it ; 
otherwise,  it  will  be  presumed  to  be  legal  until  the  contrary  is 
shown,  as  illegality  is  never  to  be  presumed. 


Cowp.  341 ;  1  Co.  284,  256,  633  ;  4  Eurr.  23C0 ;  2  Kose.  351 ;  Plowd.  88; 
Biggs  V.  Lawrence,  3  T.  E.  454  ;  Petiie  «.  Hanuay,  3  T.  II.  422 ;  Collins  v. 
Blantern,  2  Wils.  341 ;  Kier  v.  Leeman,  6  Q.  B.  SOS  ;  Bennett  v.  Clough,  1 
B.  &  Aid.  463  ;  Cundell  v.  Dawson,  4  C.  B  376  ;  Murray  t.  Reeves,  8  B. 
&  C.  425;  Featheistou  v.  Hutchinson,  Cro.  Eliz.  199  ;  Paxton  v.  Popham, 
9  East,  403;  Earle  v.  Hopwood,  30  L.  J.  217,  C.  P. 


MAXIM  XXXIV. 


Executio  juris  non  luibet  injuriam  :  (2  Inst.  482.) 

The  execution  of  the  process  of  the  hiw  does  no  injury. 

LL  courts  of  law  will  take  care  that  the  process  of  the 
court  is  not  made  use  of  for  the  purpose  of  oppression 
and  injustice ;  though  he  is  not  to  he  considered  oppressive 
and  unjust  who  merely  avails  himself  thereof  to  ohtain  his 
legal  rights,  however  rigorous  the  remedy  may  seem  to  be ;  and 
all  are  alike  entitled  to  use  the  means  which  the  law  has  pro- 
vided for  enforcing  their  legitimate  rights.  It  is  not  the  use, 
hut  the  abuse  of  the  process  of  law  which  makes  an  injury,  and 
the  misuser  of  the  process  of  the  law  is  a  question  of  damages 
merely  between  the  parties. 

This  maxim  is  used  by  Lord  Coke  to  confirm  the  position 
taken  by  him  that :  If  a  man  be  imprisoned  by  order  of  law, 
the  i^laintiff  may  take  a  feoffment  of  him,  or  a  bond  to  satisfy 
his  debt,  and  to  release  the  defendant,  notwithstanding  that 
imprisonment ;  for  the  imprisonment  was  not  by  duress  of  im- 
prisonment, because  he  was  in  prison  by  course  of  law ;  for  it 
is  not  accounted  in  law  duress  of  imprisonment  unless  the  im- 
prisonment,^ or  the  duress  offered  in  prison,  or  out  of  prison,  is 
tortious  and  unlawful ;  for  "  executio  juris  non  habet  injuriam." 

In  the  execution  of  any  capias  ad  satisfaciendum^  or  fieri 
facias,  the  sheriff  or  other  officer  having  the  execution  of  the 
writ  must  tirst  produce  and  show  his  authority,  and  make  de- 
mand of  the  amount  claimed,  before  he  can  seize  the  body  or 
levy  the  goods ;  and  if  any  irregularity  or  illegality  occur  in 
tlie  execution  of  tlie  process,  the  party  guilty  of  such  illegality 
or  irregularity  will  be  liable  in  damages  therefor,  and  for  the 
injury  sustained  by  the  defendant  thereby.  For,  when  it  is 
said  that  the  execution  of  the  process  of  the  law  does  no  injury, 
it  means  the  proper  execution  of  it. 


84  LEGAL    MAXIMS. 

"Where  a  sheriff,  liaving  a^./b.  against  the  goods  of  A., 
levied  the  goods  of  B. ;  or,  having  a  ca.  sa.  against  C,  takes 
D. ;  in  both  such  cases,  such  illegal  execution  not  being  war- 
ranted by  the  law,  he  is  liable  in  damages  to  tlie  respective 
parties  for  the  injury  sustained  by  them  thereby.  For,  whilst 
the  law  upholds  the  proper  execution  of  its  process,  it  will  in- 
terfere to  prevent  its  improper  execution.  So,  an  arrest  on 
mesne  process,  under  pretense  that  the  defendant  was  about  to 
leave  the  country,  is  an  abuse  of  the  process  of  the  law,  and 
renders  the  plaintiff  liable  to  tlie  defendant  for  the  false  im- 
prisomnent,  and  to  the  court  for  abuse  of  its  process ;  as,  where 
the  facts  are  not  truly  stated  in  the  affidavit,  and  the  law  has 
been  put  in  motion  without  reasonable  and  probable  cause,  the 
party  making  the  affidavit,  or  procuring  the  arrest,  being  guilty 
of  falsehood  in  the  affidavit,  or  of  swearing  to  facts  not  within 
his  knowledge. 

So  it  is  an  abuse  of  the  process  of  the  law  illegally  to  detain 
a  man  upon  a  ca.  sa.  executed  upon  a  dies  nmi,  as  a  Sunday,  un- 
til he  can  be  taken  upon  a  fresh  ca.  sa.  on  the  Monday  ;  or  for 
the  sheriff  or  jailer  having  custody  of  a  prisoner  for  debt  to 
detain  him,  or  interfere  to  prevent  his  discharge,  after  having 
an  authoi"ity  for  such  discharge  from  the  plaintiff's  attorney. 

Knowingly  to  arrest  a  person  privileged,  as  an  attorney 
attending  court,  or  an  M.  P.  attending  Parliament,  is  an  abuse 
of  the  process  of  the  court,  which  in  the  execution  of  it  works 
an  injury,  as  that  of  the  attorney  to  his  client,  and  that  of  the 
M.  P.  to  the  public ;  but  it  is  not  such  an  injury  as  to  form  the 
ground  of  an  action  for  an  illegal  arrest. 


2  Inst.  482;  Brae.  1.  2,  foL  16  b;  Britton,  19;  Co.  Litt.  259;  2  Roll.  R. 
301 ;  D.  47,  10,  13,  s.  1  ;  6  Co.  53 ;  Hobart,  266  ;  Petrie  v.  Lament,  4  Sc. 
N.  R.  339 ;  Magnay  v.  Burt,  5  Q.  B.  381 ;  McGregor  v.  Barrett,  6  C.  B.  262 ; 
Wade  V.  Simeon,  13  M.  &  W.  647;  Ross  v.  Worman,  5  Exch.  359;  Parmain 
V.  Hooper,  7  Scott,  663;  Heywood  v.  Collinge,  9  A.  &  E.  274;  Grainger  v. 
Hill,  4  Bing.  N.  C.  212 ;  Gibbons  v.  Alison,  3  C.  B.  185 ;  Crozer  v.  Pilling, 
4  B.  &  C.  26. 


MAXIM  XXXV. 


Ex  nudo  pacto  non  oritur  actio  :  (PL  Com.  305.) 

From  a  nude  coutract,  l.  e.  a  contract  without  considera- 
tion, an  action  does  not  arise. 

THIS  refers  to  a  parol  or  simple  contract,  and  whetlier  by 
word  of  mouth  or  writing ;  but  not  to  a  contract  under 
seal,  which  latter  does  not,  in  the  absence  of  fraud  or  such 
like,  require  any  consideration  to  support  it.  The  consider- 
ation sufficient  to  support  a  simple  contract  is,  briefly,  some 
benelit  to  the  defendant,  or  some  detriment  to  the  plaintiff, 
moving  from  the  plaintiff.  And  this  consideration  need  not 
of  necessity  be  money,  goods,  or  such  like  ;  but  it  may  be  a 
consideration  proceeding  from  nature;  as,  if  a  man  make  a 
contract  with  another,  that  if  he  will  take  his  daughter  to 
wife  he  will  give  him  201. ;  in  this  case,  if  he  take  her  to 
wife  he  shall  have  an  action  for  the  20Z. ;  and  this  out  of 
regard  for  nature, 

A  nude  contract  is  stated  to  be :  where  a  man  promises 
another  to  give  him  a  sum  of  money  on  such  a  day ;  to  pay 
the  debt  of  another ;  to  take  less  than  the  full  amount  of  his 
debt ;  or  to  give  time  for  payment,  and  nothing  is  given  as 
the  consideration  for  such  promises.  These  are  called  naked 
promises,  and  no  action  will  lie  for  their  breach,  because  noth- 
ing is  given  why  they  should  be  made.  So,  if  a  man  prom- 
ise another  to  keep  for  him  safely  to  such  a  time  certain 
goods,  and  afterwards  refuse  to  take  them ;  or  to  do  for  him 
some  other  service ;  there  no  action  lies  against  the  party 
promising  for  refusing ;  for,  if  there  is  no  consideration  for 
the  promise,  there  is  no  obligation  to  perform  it. 

In  all  such  promises  to  give  a  thing  or  to  do  a  service, 
there  must  be  a  transfer  of  possession  of  the  gift,  or  a  per- 
formance  of    the  service,   to   make  the  promise   complete; 


86  LEGAL    MAXIMS. 

otherwise  they  are  nuda  pacta,  and  cannot  be  enforced  at  law. 
The  transfer  of  property  by  gift  must  be  by  deed,  or  actual 
delivering  of  possession,  or  it  is  nudum  jxictum. 

The  performance  of  an  act  which  the  party  promising  is 
under  legal  obligation  to  perform  is  no  consideration  for  a 
promise  ;  as  a  promise  of  reward  to  a  sheriff  for  executing  a 
writ,  or  to  a  witness  to  give  evidence  at  a  trial. 

On  the  other  hand,  any  act  done  as  the  consideration  for 
the  promise,  and  which  the  party  doing  is  under  no  legal  obli- 
gation to  perform,  whereby  the  promisor  has  obtained  some 
benefit  or  advantage,  or  whereby  the  party  to  whom  the 
promise  is  made  has  sustained  some  loss  or  inconvenience,  is 
sufficient  to  render  the  promise  obligatory,  and  to  sustain  an 
action  at  law.  As,  where  the  defendant  promised  a  reward  to 
whoever  would  give  information  leading  to  the  conviction  of 
a  thief,  and  the  plaintiff,  a  police  officer  in  the  district  where 
the  offense  was  committed,  gave  that  information,  he  was  held 
entitled  to  recover.  So,  an  alleged  promise  to  marry  was  held 
a  sufficient  consideration  in  equity  to  entitle  a  plaintiff  to  a 
decree  for  a  specific  performance  of  a  contract  to  pay  an  an- 
nuity. And  where  a  person  wanting  to  get  rid  of  his  liability 
upon  some  shares  in  a  public  company,  and  valueless,  agreed 
without  any  consideration  to  transfer  them  to  another,  the 
contract  was  held  to  be  binding.  And  so,  also,  there  are  some 
contracts  which,  though  nuda  pacta  of  themselves,  are  per- 
fected and  made  obligatory  by  mutuality  of  obligation,  as  the 
agreement  by  creditors  to  take  a  composition,  or  a  mutual 
agreement  to  marry. 


Plowd.  Com.  305 ;  Doc.  &  Stud.  lib.  2,  cap.  24  ;  1  Roll.  R.  433  ;  Cro.  C. 
194  ;  Shepp.  Touch.  224,  235  ;  5  Co.  117;  Lampleigh  v.  Braithwaite,  Hob. 
105  ;  Sharr  «.  Pitch,  19  L.  J.  113,  Ex.  ;  Cooper  x.  Phillips,  1  C.  M.  &  R. 
649 ;  Clay  v.  Willis,  1  B.  &  C.  364 ;  Boothby  v.  Snowden,  3  Camp.  475  ; 
Cheadle  v.  Ken  ward,  3  De  Gex  &  S.  27  ;  England  v.  Davidson,  11  A.  & 
E.  856  ;  Lockhart  v.  Barnard,  15  L.  J.  1,  Ex. ;  Keenau  v.  Hadley,  10  L. 
T.  (N.  S.)  683. 


MAXIM  XXXVI. 


Expressio  uniiis  personce,  vel  rei,  est  exclusio  alterius  :  (Co. 
Litt.  210.) 

The  express  mention  of  one  person,  or  thiog,  is  the  ex- 
clusion of  another. 

AN  instance  of  the  application  of  this  rule  is,  where  a  par- 
ticular custom  is  sought  to  be  introduced  into  a  written 
contract  at  the  instance  of  one  of  the  jDarties.  This  cannot  be 
done  where  the  contract  contains  express  stipulations  of  a  na- 
ture contrary  to  the  custom.  As,  in  the  case  of  a  lease  con- 
taining stipulations  which  are  in  themselves  inconsistent  witli 
the  custom  of  the  country  ;  such  custom  is  thereby  excluded 
from  the  lease,  and  from  taking  effect  upon  it  in  any  manner  at 
variance  with  the  express  contract  of  the  parties  as  stated  in 
the  lease.  Again,  that  which  is  positively  expressed  shall  not 
be  controlled  or  negatived  by  that  which  is  merely  implied,  as 
is  also  shown  by  the  maxim,  "  Expressum  facit  cessare  tac- 
itum."  As,  where  lands  are  given  to  two,  they  are  joint  ten- 
ants for  life,  but  the  habendum  may  otherwise  limit  the  es- 
tate ;  as,  if  a  lease  be  made  to  two,  haheiidum  to  tlie  one  for 
life,  the  remainder  to  the  other  for  life,  this  alters  the  general 
meaning  of  the  premises.  And  if  a  lease  be  made  to  two, 
hahenduni  to  one,  moiety  to  one,  and  another  moiety  to  an- 
other, the  hahenduTYi  makes  them  tenants  in  common.  And 
so  one  part  of  the  deed  explains  the  other,  and  there  is  in  tliat 
case  no  repugnance. 

The  maxim  under  notice  must  not  be  considered  as  re- 
stricting the  doctrine  of  implication  ;  it  merely  restrains  its 
application  within  the  limits  expressed  in  the  maxim.  But  an 
express  agreement  between  parties  ousts  every  implication  by 
law.  A  sum  of  money  secured  by  mortgage  in  fee  of  real 
estate  will  by  the  ordinary  rules  of  law  go  to  a  man's  execu- 


88  LEGAL    MAXIMS. 

tors,  and  not  to  liis  lieirs,  unless  a  contrary  intention  be  ex- 
pressed by  tlie  deed ;  for  the  money,  whicli  is  personal  prop- 
erty, is  not  converted  by  its  being  secured  upon  real  estate, 
tliougb  an  expression  to  the  contrary  would  alter  its  devolu- 
tion. So  the  legal  estate  in  the  fee  in  such  mortgaged  prop- 
erty would  go  to  the  heir  at  law  of  the  mortgagor,  unless  a 
contrary  intention  appear  by  the  deed.  Upon  the  death  of 
a  mortgagor,  his  mortgaged  freehold  estate  carries  with  it, 
whether  by  devise  or  descent,  the  burden  of  the  mortgage, 
unless  a  contrary  intention  be  expressed  by  the  mortgagor  by 
his  will  or  otherwise.  But  this  is  not  so  as  to  leaseholds,  for 
they  are  not  within  the  statute,  but  are  governed  by  the  or- 
dinary rules  of  law  as  to  personal  estate. 

Where  A.  by  his  will  left  all  his  estate  to  F.  M.  F.  and  to 
his  sister  M.F.,  testator's  granddaughter,  share  and  share  alike, 
said  M.  F.  then  living  in  France  with  her  uncle  M. ;  and  M.  F. 
was  not  then  living,  nor  had  ever  so  lived  ;  whilst  her  sister 
C.  F.  was  living,  and  had  so  lived  with  the  uncle  M.  ;  it  was 
held  that  the  name  should  control  the  description,  and  that 
M.  F.  was  entitled.  And  this  agrees  with  the  rule,  "  Nihil 
facit  error  nominis  cum  de  corpore  constat " — an  error  in  a 
name  is  not  of  much  consequence  where  there  is  a  pretty 
clear  indication  of  the  person  intended. 

A  new  statute  abrogates  an  old  one.  The  common  law  ceases 
when  the  statute  law  commences.  An  express  and  implied 
covenant  upon  the  same  subject  cannot  exist  together.  Gen- 
eral words  are  governed  by  particular  words,  and  the  absence 
of  particular  words  gives  effect  to  general  words.  A  verbal 
agreement  or  stipulation  will  not  be  allowed  to  be  added  to  a 
contemporaneous  written  agreement. 


Co.  Litt.  183,  310;  4  Co.  80;  Sliepp.  Touch.  114;  1  Ld.  Eaym.  14; 
Emenens  v.  Elderton,  4  H.  L.  Cas.  G24;  Merrill  v.  Frame,  4  Taunt.  329; 
Loyd  V.  Ingleby,  15  M.  &  W.  465  ;  Clarke  v.  Roystone,  13  M.  &  W.  752  ; 
Standen  v.  Chrismas,  10  Q.  B.  135;  Tanner  v.  Smart,  6  B.  «fe  C.  609 ;  Webb 
v.  Plummer,  2  B.  «&  A.  746;  Earl  of  Hardwicke  v.  Lord  Sandys,  12  M.  »& 
W.  761;  Solomon  v.  Solomon,  10  L.  T.  (N.  S.)  54;  Me  Pluukett,  11  Ir. 
Ch.  R.  3G1  ;  Drake  r.  Drake,  8  H.  L.  Cas.  172. 


MAXIM  XXXVII. 


Falsa  demonstratio  non  nocet:  (6  T.  E.  676.) 

A  false  description  does  not  vitiate  a  document. 

r  I IHIS  maxim,  in  its  application,  means,  that  an  instrument, 
-L  whether  it  be  deed,  contract,  will  or  otherwise,  open  to 
construction  for  an  incorrect  or  false  description  of  a  person  or 
thing,  in  name  or  quality,  will  have  such  a  construction  put 
upon  it  as  will  carry  into  effect  the  intention  of  the  parties, 
so  far  as  that  can  be  done  without  interfering  with  the  positive 
and  plain  meaning  of  the  document,  apart  from  the  incorrect 
or  false  description.  As,  if  there  be  a  positive  devise  of 
Ivnowle  Field,  in  the  parish  of  A.,  to  B.,  which,  without  more, 
would  be  sufficient  to  describe  the  land  devised,  but  yet  to 
which  the  testator  adds  some  further  description  inconsistent 
with  that  already  given  ;  such  superadded  description  will  be 
rejected  under  this  maxim,  and  not  be  allowed  to  vitiate  the 
already  perfect  devise. 

Also,  where  a  man,  being  married  to  A.,  marries  B.,  his 
first  wife  A.  being  still  alive  and  living  at  his  death  ;  a  devise 
by  him  to  B.  as  his  wife  B.,  naming  her,  will  be  good,  there 
being  no  person  else  to  answer  the  description,  and  she  being 
the  person  named  and  evidently  intended  ;  and  so  of  illegiti- 
mate children  called  children  by  name.  The  same  principle 
applies  to  the  misnaming  a  devisee,  or  a  thing  devised,  and  in 
similar  cases. 

The  maxim  is  also  frequently  applied  in  the  construction  of 
wills,  where  the  intention  of  the  testator  is  rendered  ambiguous 
by  something  done  by  him  since  the  making  of  the  will ;  as, 
where  he  bequeaths  some  particular  stock  and  afterwards  sells 
it ;  though  he  have  not,  at  the  time  of  his  death,  any  stock  to 
answer  the  particular.description  of  that  mentioned  in  the  will, 
yet,  the  surrounding  circumstances  being  considered,  such  an 


90  LEGAL    MAXIMS. 

amount  of  stock  of  tlie  particular  description  mentioned  by 
liim  will  be  bold  to  pass,  ratber  tban  tbat  tbc  bequest  sbould 
fail ;  and  tbe  words  used  to  describe  tbe  stock  bequeatlied  will 
be  used  to  designate  tbe  jjarticular  stock  tbe  testator  intended 
tbe  legatee  to  take. 

Also,  in  tbe  construction  of  a  deed,  wbere  one  certainty  is 
added  to  anotber  certainty,  or  to  a  tiling  before  uncertain  ;  as, 
if  I  release  all  my  lands  in  Dale  wbicb  I  bave  by  descent  on 
tbe  part  of  my  fatber,  and  I  bave  lands  in  Dale  on  tbe  part  of 
my  motber,  but  no  lands  by  descent  on  tbe  part  of  my  fatber, 
tbe  release  is  void,  and  tbe  words  of  certainty  added  to  tbe 
general  words,  "  all  my  lands^"*  bave  effect.  But  if  tbe  release 
bad  been  of  Wbitmore,  in  Dale,  wbicb  I  bave  by  descent  on 
tbe  part  of  my  fatber,  and  it  were  not  So,  tbe  release  would  be 
valid ;  for  tbis  tbing  was  certainly  enougli  expressed  by  tbe 
first  words,  and  tbe  last  were  of  no  effect. 

Wbere,  in  a  lease  for  lives  renewable  forever,  tbe  name 
Beaucbamp  Colclougb,  tlfe  younger,  son  of  Beaucbamp  Col- 
elougb,  of  Zion  Hill,  in  tbe  county  of  Carlow,  Esq.,  now  of  tbe 
age  of  fifteen  years  and  upwards,  was  inserted,  no  person 
answering  tbat  description ;  but  tbere  being  a  Beaucbamp, 
Urqubart  Colclougb,  son  of  Beaucbamp,  wbo  did  not  reside  at 
Zion  Hill ;  and  also  a  Beaucbamp,  son  of  Henry,  wbo  did  re- 
side at  Zion  Hill,  tbe  maxim,  "  Veritas  nominis  tollit  errorem 
demonstrationis,"  was  beld  to  apply,  tbe  name  being  substan- 
tially correct,  and  tbe  false  description  was  rejected ;  and  Beau- 
cbamp Urqubart,  son  of  Beaucbamp,  was  beld  to  be  tbe  life  in 
tbe  lease.  So  it  is  in  similar  cases ;  tbe  maxim,  "  Falsa  demon- 
stratio  non  nocet,"  being  of  almost  daily  apj^bcation. 


6  T.  R.  676;  Plowd.  191;  Bac.  Max.  Reg.  13,  24;  1  Ld.  Raym.  303; 
Shepp.  Touch.  5 ;  Doe  dem.  Hubbard  «.  Hubbard,  15  Q.  B.  241 ;  Night- 
ingall  V.  Smith,  1  Exch.  886  ;  Griffith  v.  Penson,  9  Jur.  385,  Ex. ;  Llewel- 
lyn XI.  Earl  of  Jersey,  11  M.  &  W.  183 ;  Harrison  «.  Hyde,  29  L.  J.  24, 119, 
Ex. ;  Bluudell  v.  Gladstone,  1  Phil.  279 ;  Mellers  v.  Travers,  8  Bing.  244 ; 
D.  and  E.  Railway  Company  v.  Bradford,  7  Ir.  Law  Rep.  57,  624;  Stanley 
V.  Stanley,  7  L.  T.  (N.  S.)  136  ;  Gains  ».  Rouse,  5  C.  B.  422;  Colclough  t. 
Smith,  10  L.  T.  (N.  S)  918;  Meredith's  Trust,  10  L.  T.  (K  S.)  565. 


MAXIM  XXXVIII. 


Hares  legitimus  est  quern  nuptm  demonstrant :  (Co.  Litt.  7.) 
The  lawful  beiu  is  he  whom  wedlock  shows  so  to  be. 

TT-EEES  "  is  said  to  be  he  "  qui  ex  justis  nuptiis  pro- 
-J*— ^     creatus  ; "    for,   "  haeres  legitimus  est  quern  nuptiee 
demonstrant ; "  and  is  he  to  whom  lands,  tenements,  and  here- 
ditaments by  the  act  of  God  and  right  of  blood  descend ;  for 
"  solus  Deus  hoeredem  facere  potest,  non  homo." 

Bastards,  or  "  nullius  filii " — born  out  of  wedlock,  or  not 
within  a  competent  time  after  its  determination — cannot  be 
heirs,  the  maxim  in  reference  thereto  being,  "  Qui  ex  damnato 
coitu  nascuntur,  inter  liberos  non  computantur."  l^or  an  alien 
born,  though  born  in  wedlock,  unless  the  mother  be  a  natural 
born  subject,  or  until  naturalized  ;  nor  one  attaint  of  high  or 
2)elit  treason,  or  murder.  A  hermaphrodite  may  be  heir,  and 
take  according  to  that  sex  which  is  most  prevalent ;  but  a  mon- 
ster not  having  human  shape,  cannot.  A  deformed  person  may 
be  heir,  so  may  idiots  and  lunatics. 

The  word  "  heir  "  is  nomen  colleciivum,  and  extends  to  all 
heirs  ;  and  under  heirs  the  heirs  of  heirs  in  injlnitimt  are  com- 
prehended ;  and  consanguinity,  or  kindred,  which  creates  the 
heir,  is  defined  to  be,  "  Yinculum  personarum  ab  eodem  stip- 
ite  descendentium,"  or  the  connection  or  relation  of  persons 
descended  from  the  same  stock  or  common  ancestor. 

The  valid  marriage  of  the  ancestor  is,  under  this  rule,  neces- 
sary to  constitute  the  heir.  Marriage  may  be  proved  by  repu- 
tation, and  strict  evidence  of  the  regularity  of  the  marriage 
need  not  in  the  first  instance  be  given  ;  and  a  marriage  ^n  a 
parish  church,  with  the  usual  forms,  by  a  person  acting  as  min- 
ister, is  of  itself  presumptive  evidence  of  a  regular  and  legal 
marriage.  But  wliere  that  prima  facie  evidence  is  rebutted, 
and  the  parties  are  put  to  strict  proof  ;  as,  where  a  title  by  de- 


92  LEGAL    MAXIMS. 

scent  is  disputed,  and  is  the  subject  of  inquiry,  all  the  forms  of 
the  marriage  ceremony  are  then  necessary  to  be  proved,  and 
those  differ  even  in  the  United  Kingdom,  according  to  whether 
or  not  the  ceremony  took  place  in  England,  Ireland,  or  Scot- 
land. For  instance,  a  person  born  in  Scotland  of  parents  not 
married  till  after  the  birth,  though  legitimate  by  the  law  of 
Scotland,  cannot  inherit  the  real  estate  in  England  of  his  father ; 
nor  can  the  father  of  a  man  born  before  marriage  in  Scotland 
of  his  parents  succeed  to  real  estate  whereof  the  son  had  died 
seized  in  England.  Again,  though  the  strict  forms  of  the  mar- 
riage ceremony  have  been  gone  through,  the  marriage  may  be 
proved  to  be  otherwise  void,  and  the  heir  who  was  before  ap- 
parent, by  such  proof  be  shown  to  be  illegitimate.  Where, 
however,  the  marriage  is  in  all  respects  valid  and  undisputed, 
the  heir  is  "  queni  nuptise  demonstrant." 

This  rule  is  peculiarly  applicable  to  the  common  law  of 
England,  by  which  no  one  can  inherit  any  land  who  was  not 
born  after  the  lawful  marriage  according  to  the  common  law  of 
England  of  the  parents  ;  and  differs  from  the  civil  and  canon 
law,  which  legitimizes  the  children  born  out  of  wedlock  by  the 
after  marriage  of  their  parents,  by  the  rule,  "  Pater  est  quern 
nuptise  demonstrant."  And  this  difference  is  thus  expressed 
by  Glanvil : — "  Orta  est  quaestio,  si  quis  antequam  pater  ma- 
trem  suam  desponsaverat  fuerit  genitus  vel  natus,  utrum  talis 
filius  sit  legitimus  hseres,  cum  postea  matrem  suam  despon- 
saverat :  et  quidem  licet  secundum  canones  et  leges  Eomanas 
talis  filius  sit  legitimus  hseres  ;  tamen  secundum  jus  et  consue- 
tudinem  regni  nullo  modo  tanquam  hagres  inhaereditate  susti- 
netur,  vel  hasreditatem  de  jure  regni  petere  potest." 


Co.  Litt.  3,  7,  8;  Mirr.  c.  3,  s.  15 ;  Bract.  1.  2,  fol.  62  b;  Nov.  89,  c.  8  ; 
2  Inst.  97;  Glan.  lib.  7,  c.  15  ;  Jacob  Die. ;  53  Geo.  3,  c.  145  ;  7  &  8  Vict, 
c.  66  ;  3  «fe  4  Will.  4,  c.  106  ;  Re  Don's  Est.  27  L.  J.  98,  Ch. ;  Doe  dem. 
Birtwistle  v.  Vardill,  2  CI.  &  Fin,  571  ;  Ee  Dominigo  Capedevieille,  11 
L.  T.  (N.  S.)  89  ;  K.  v.  Souiton,  5  A.  &  E.  186  ;  Reed  v.  Passer,  Peake  Cas. 
233 ;  4  Geo.  c.  76  ;  Mainwaring's  Case,  26  L.  J.  10,  M.  C. 


MAXIM  XXXIX. 


Ignorantia  facti  excusat :  ignorantia  juris  non  excusat :  (1 
Co.  177.) 

Ignorance  of  the  fact  excnses  ;  ignorance  of  the  law  does 
not  excuse. 

ACCORDII^G  to  this  maxim,  it  is  presumed  that  every  one 
knows  the  law,  though  he  is  not  presumed  to  know  every 
fact.  The  presumption  of  knowledge  of  the  law,  however,  ad- 
mits of  exceptions  in  doubtful  cases.  An  infant  of  the  age  of 
discretion  is  punishable  for  crimes,  though  ignorant  of  the  law  ; 
but  infants  under  such  age  are  excused  by  natural  ignorance. 
Persons  not  of  sane  mind  are  excused  for  their  ignorance  of 
the  law,  for  this  ignorance  they  have  by  the  hand  of  God. 

An  illiterate  person,  or  one  deaf,  dumb,  or  blind,  is  excused 
from  the  consequences  of  his  acts,  unless  it  appear  that  he  was 
capable  of  understanding  what  he  was  doing,  and  that  he  did 
so  understand. 

If  a  man  buy  a  horse  in  market  overt  from  one  who  had  not 
property  in  it,  he  being  ignorant  of  the  fact,  in  that  case  his 
ignorance  shall  excuse  him  ;  but  if  he  bought  out  of  market 
overt,  or  with  knowledge  that  the  horse  was  not  that  of  the 
seller,  no  property  would  pass  by  the  sale. 

In  the  House  of  Lords  it  has  been  held  that,  under  peculiar 
circumstances,  the  time  for  enrollment  of  a  decree,  for  the  pur- 
pose of  appeal,  may  be  extended  beyond  the  time  usually  al- 
lowed, namely,  five  years  from  its  date  ;  as,  where  the  party  is 
under  some  actual  disability,  or  where  lie  has  been  prevented 
by  ignorance  of  the  law,  or  some  vis  ?najor  or  casus  fortuitus. 
But  this  privilege  will  not  be  granted  to  a  solicitor,  or  one  sup- 
posed to  know  the  law.  So,  also,  where  the  plaintiff  suffered 
the  defendant  to  sell  some  of  his  property  under  an  impression 
that  it  had  passed  to  the  defendant  by  a  deed  of  assignment, 


94  LEGAL    MAXIMS. 

wliicli  was,  in  fact,  inoperative,  it  was  held  tliat  he  was  not  en- 
titled to  recover  the  amount  of  the  purchase  money  as  money 
received  to  his  use. 

The  maxim  holds  good  in  equity  as  well  as  in  law.  It  is 
best  illustrated  by  the  following  general  example,  viz. :  In 
the  absence  of  fraud  or  bad  conscience,  money  paid  with  full 
knowledge  of  the  facts,  but  through  ignorance  of  the  law,  is  not 
recoverable ;  whereas,  money  paid  in  ignorance  of  the  facts, 
there  being  no  laches  on  the  part  of  the  party  paying  it,  is  re- 
coverable. The  following  may  be  given  as  an  instance  of 
money  paid  under  a  mistake  of  facts.  Where  money  was  paid 
on  account  of  a  debt,  and  a  dispute  occurring  afterwards  be- 
tween the  parties,  a  balance  was  struck,  omitting  to  give  credit 
for  the  sums  so  paid  ;  and  the  plaintiff  paid  the  whole  balance  ; 
he  was  held  entitled  to  recover  back  the  sum  paid  on  account 
as  money  paid  by  mistake  and  in  the  hurry  of  business.  But 
where  A.  gave  as  security  to  his  bankers  all  his  interest  in  a 
supposed  devise  to  him,  subject  to  a  charge  payable  out  of  it  of 
a  debt  due  from  him  to  B.,  and  the  bankers  afterwards  volun- 
tarily paid  B.,  they  were  not  permitted  to  recover  the  money 
back  again  from  B.  upon  finding  that  the  devise  had  been  re- 
voked. 

Ignorance  of  a  fact,  as  intended  by  this  maxim,  may  be  de- 
lined  to  be  that  state  of  mind  in  a  man  which  upon  reflection 
supposes  a  certain  fact  or  state  of  things  to  exist  which  does 
not  in  truth  so  exist ;  and  ignorance  of  the  law,  that  willful 
ignorance  which  neglects  or  refuses  to  be  informed.  For  the 
law  is  not  so  unreasonable  as  to  refuse  to  correct  a  mistake,  or 
so  unjust  as  to  punish  a  man  for  natural  inability. 


1  Co.  177  ;  5  Co.  83;  Hale's  P.  C.  42;  Doct.  &  Stu.  1,  46,  309;  2  Co.  3; 
Harman  v.  Cane,  4  Vin.  Abr.  387;  Brisbane  I'.Dacres,  5  Taunt.  143;  Barber 
V.  Pott,  4  H.  &  N.  759;  Sargent  «.  Gannon,  7  C.  B.  752;  Teede  v.  John- 
son, 11  Exch.  840  ;  Harratt  v.  Wise,  9  B.  &  C.  712;  Kelly  «.  Soliiri,  9  M. 
&  W.  54;  Wilson  v.  Kay,  10  A.  &  E.  82;  Milnes  i\  Duncan,  6  B.  «fc  C. 
671 ;  Aikiu  v.  Short,  25  L.  J.  321,  Ex. ;  Emery  v.  Webster,  9  Exch.  242  ; 
Beavan  v.  Countess  of  Mornington,  2  L.  T.  (N.  S.)  675. 


MAXIM  XL. 


Impotentia  excusat  legem :  (Co.  Litt.  29.) 
Impotency  excuses  law. 

LORD  COKE  sajs,  that  wliere  a  man  seized  of  an  advow- 
son,  or  rent  in  fee,  liass  issue  a  daughter  who  is  married 
and  has  issue,  and  dies  seized ;  tlie  wife,  before  the  rent  be- 
comes due  or  the  church  void  dying,  she  has  but  a  seizin  in 
law,  and  yet  the  husband  shall  be  tenant  by  the  curtesy,  be- 
cause he  could  not  possibly  obtain  any  other  seizin.  But  if  a 
man  die  seized  of  lands  in  fee,  which  descend  to  his  daughter, 
who  marries,  has  issue,  and  dies  before  entry;  the  husband 
shall  not  be  tenant  by  the  curtesy,  though  she  had  a  seizin  in 
law,  and  this  by  reason  of  the  non-entry  in  her  lifetime. 

All  things  directed  by  the  law  to  be  done,  are  supposed 
possible  of  performance,  but  when  the  contrary  is  shown,  per- 
formance will  be  excused,  as  in  the  case  of  a  7nandamus  directed 
to  some  public,  judicial,  or  ministerial  officer  or  corporate 
body,  commanding  the  performance  of  some  public  duty ;  in 
which  case,  when,  by  the  return  to  the  mandamus,  compliance 
is  shown  to  be  impossible,  performance  will  be  excused.  !Nor 
will  a  inandamus  be  granted  unless  it  clearly  appears  to  the 
court  that  the  party  to  whom  it  is  directed  has  by  law  power 
to  do  what  he  is  thereby  commanded. 

Impotency  excuses  the  law  where  the  impotency  is  a  nec- 
essary and  invincible  disability  to  perform  the  mandatory  part 
of  the  law  or  to  forbear  the  prohibitory.  ISTecessity  is  a  good 
excuse  in  law ;  for,  "  IS'ecessitas  non  habet  legem." 

This  rule,  however,  does  not  apply  to  contracts  between 
parties  ;  for  what  a  man  does  voluntarily  and  of  his  own  free 
will,  he  will  be  bound  thereby.  Yet,  a  tort  frequently  arises 
out  of  a  contract,  and  necessity  is  frequently  an  excuse  for 
avoiding  a  contract.     Thus,  if  a  man  do  a  thing  which  he  is 


96  LEGAL     MAXIMS. 

compelled  by  force  to  do,  lie  sliall  not  suffer  for  it ;  as,  where 
a  man's  goods  have  been  taken  from  him  by  an  act  of  trespass 
and  subsequently  sold,  he  may  have  an  action  for  money  had 
and  received  against  the  trespasser.  So  may  the  consignor  of 
goods,  where  he  is  compelled  to  pay  extortionate  charges  to  a 
railway  company  to  get  possession  of  them.  Or  one  who  pays 
money  wrongfully  exacted  by  an  attorney,  on  his  own  or  his 
client's  behalf,  as  the  price  of  the  liberation  of  deeds  unjustly 
and  illegally  detained  from  him.  Or  where  a  sheriff  obtains 
money  under  a  threat  to  sell  goods  seized  under  2i.fi.  fa.  which 
he  has  no  right  to  sell.  Such  is  also  the  case  of  all  payments 
and  other  acts  made  and  done  under  duress. 

This  maxim  applies  in  equity  as  well  as  at  law.  For  a  court 
of  equity  will  not  enforce  specific  performance  of  a  contract 
against  an  infant ;  nor,  for  want  of  mutuality,  by  or  on  behalf 
of  an  infant,  nor  compel  performance  of  a  contract  against  a 
man  which  was  entered  into  by  him  whilst  in  a  state  of  intox- 
ication, nor  interpose  to  compel  a  man  to  do  an  act  which  he  is 
not  lawfully  competent  to  do,  as  enforcing  a  contract  against  a 
vendor  who  has  no  title,  or  even  where  the  title  is  defective. 

Where  involuntary  ignorance  is  the  cause  of  an  act,  it  is  said 
to  be  done  ex  iynorantiaj  as,  if  a  man,  non  sance  me7noricB,  hill 
another,  for  he  had  no  memory  nor  understanding ;  and  this  is 
to  be  seen  in  many  places,  as  well  in  the  Divine  as  in  the  hu- 
man law. 

The  maxims,  "  Nemo  tenetur  ad  impossibile,"  and  "  Lex 
non  cogit  ad  impossibilia,"  are  to  the  same  ]3urpose. 


Exod.  cc.  21,  22,  29;  Numb.  c.  35;  Deut.  c.  4  ;  Matt.  c.  12;  Jenk.  7; 
5  Co.  21 ;  8  Co.  91 ;  Co.  Litt.  29,  206,  258 ;  Plowd  18 ;  Hob.  96  ;  2  Bla. 
Com. ;  Mills  v.  Auriol,  1  H.  Bl.  438 ;  Reg.  v.  Bishop  of  Ely,  1  W.  Bl.  58 ; 
Pyrke  v.  Waddingliam,  10  Hare,  1 ;  Harnett  v.  Yielding,  2  Set.  &  Lef.  554 ; 
Atkinson  v.  Ritchie,  13  East,  533;  Flight  «.  Bollaud,  4  Russ.  298;  Parkin 
».  Bristol  and  Exeter  Railway  Company,  20  L.J.  443,  Ex. ;  Rodgers  ». 
Maw,  15  M.  &  W.  448;  Valpey  v.  Manley,  1  C.  B.  602;  Close  v.  Phipps, 
7  M.  &  Gr.  586. 


MAXIM  XLI. 


In  ceqiiaU  jure  melior  est  conditio  possidentis  :  (Plow.  296.) 
In  equal  rights,  tbe  condition  of  tlie  jjossessor  is  tbe 
better  ;  or,  where  the  rights  of  the  parties  are  equal, 
the  claim  of  the  actual  possessor  shall  prevail. 

T  is  a  rule  of  law,  that  a  plaintiff  shall  recover  upon  the 
strength  of  his  own  title,  and  not  upon  the  weakness  of 
his  adversary's  ;  possession,  as  a  prima  facie  right  in  the  de- 
fendant, being  sufficient  to  call  for  proof  of  an  absolute  right 
in  the  plaintiff.  This  maxim  is  adopted  alike  in  equity  as  in 
law,  and  apj^hes  to  real  as  well  as  personal  property.  It  em- 
braces the  cases  of  fraudulent  and  illegal  agreements,  convey- 
ances and  transfers  of  property,  and  the  rights  of  the  parties 
thereunder  and  thereto,  and  as  well  where  the  parties  are  in 
^ari  delicto  as  in  wquali  jure,  as  is  shown  in  the  following 
maxims  : — "  Melior  est  conditio  possidentis,  et  rei,  quam  ac- 
toris  ; "  "  In  pari  delicto,  potior  est  conditio  possidentis,  et  de- 
fendentis,"  and  "  Kem  domino,  vel  non  domino,  vendente 
duobus,  in  jure  est  potior  traditione  prior." 

In  reference  to  this  maxim;  Lord  Coke  says  :  If  lands 
holden  in  socage  ;  i.  6.,  a  tenure  on  certain  service  or  rent  other' 
than  knight  service,  or  freehold  ;  be  given  to  a  man  and  the 
heirs  of  his  body,  and  he  dies,  his  heir  under  age,  the  next 
cousin  on  the  part  of  the  father,  though  he  be  the  more  worthy, 
shall  not  be  preferred  to  the  next  cousin  on  the  part  of  the 
mother,  but  such  of  them  as  first  seized  the  heir  shall  have 
his  custody.  Also,  if  a  man  be  seized  of  land  holden  in  socage 
on  the  part  of  his  father,  and  of  other  land  holden  in  socage 
on  the  part  of  his  mother,  and  dies,  his  issue  being  within  age  ; 
the  next  of  kin  of  either  side  who  first  seizes  the  body  of  the 
heir  shall  have  him  ;  but  the  next  of  blood  on  the  part  of  the 
father  shall  enter  the  lands  on  the  part  of  the  mother,  and  the 
7 


98  LEGAL    MAXIMS. 

next  of  kin  on  the  part  of  the  mother  shall  enter  the  lands  on 
the  part  of  the  father. 

The  following  cases  may  be  given  in  further  illustration. 
"Where  a  plaintiff  in  an  action  for  negligence  has  contributed 
to  the  injury  complained  of,  he  cannot  recover ;  as,  where  a 
man  put  a  large  sum  of  money,  in  some  hay,  into  an  old  nail- 
bag,  and  delivered  it  to  a  common  carrier,  without  notice  of  its 
contents,  to  carry  to  a  banker ;  or  carelessly  packed  up  and 
sent,  without  notice  of  the  value,  valuable  or  fragile  articles, 
which  were  in  consequence  lost  or  destroyed ;  the  carrier,  in 
such  cases,  was  held  not  responsible,  he  not  having  been  in- 
formed of  the  nature  of  the  goods  committed  to  his  care,  in 
order  that  he  might  take  sufficient  care  of  them.  So,  where  a 
man  signed  several  blank  checks  and  left  them  in  the  hands 
of  his  wife  to  be  filled  up  when  required,  and  she  gave  one  of 
them  to  a  clerk  to  fill  up  for  601.  2s.  del,  and  the  clerk  filled  it 
up  in  such  a  manner  as  that  he  could  afterwards  alter  the 
amount  to  350Z.  2s\  dd.,  which  he,  after  it  had  been  signed  and 
whilst  on  his  way  to  the  bank,  did,  and  absconded  with  the 
money  ;  in  such  case  the  customer  was  held  liable  to  bear  the 
loss,  it  being  caused  by  his  own  and  his  agent's  negligence. 
For,  in  all  such  cases,  "  In  pari  delicto,  melior  est  conditio  pos- 
sidentis, et  rei^  quam  actoris."  But  contributory  negligence  on 
the  part  of  the  plaintiff  will  not  prevent  him  recovering  dam- 
ages unless  it  be  such  that,  but  for  that  negligence,  the  injury 
would  not  have  been  sustained ;  nor,  if  the  defendant  might 
by  care  have  avoided  the  consequences  of  the  carelessness  of 
the  plaintiff. 


Plowd.  296  ;  4  Inst.  180;  Munt  v.  Stokes,  4  T.  R.  564;  Co.  Litt.  88; 
Hob.  103,  109 ;  Doct.  &  Stud.  9;  Wing.  Max.  Reg.  98,  pi.  2,  3 ;  Young  v. 
Grote,  12  Moore,  484 ;  Tuff  v.  Warraan,  26  L.  J.  263,  C.  P. ;  Gibbon  v. 
Paynton,  4  Burr.  2298  ;  East  India  Co.  v.  Tritton,  3  B.  &  C.  289 ;  Keele 
V.  Wheeler,  8  Scott  N.  R.  338;  Simpson  v.  Bloss,  7  Taunt.  246;  Skaife  v. 
Jackson,  3  B.  &  C.  421. 


MAXIM  XLII. 


In  fiotione  juris  semjyer  cequitas  existit :  (11  Co.  51.) 
la  fiction  of  law  equity  always  exists. 

THE  following  case  will  serve  to  illustrate  tins  maxim  : — 
Where  one  disseize  another,  and  during  the  disseizin  cuts 
down  trees,  and  afterwards  the  disseizee  re-enter ;  he  shall  have 
an  action  of  trespass  vl  et  armis  against  the  disseizor  for  the 
trees ;  for  after  the  regress  of  the  disseizee,  the  law  doth  sup- 
pose the  freehold  to  have  been  always  in  him.  But  if  the  dis- 
seizor make  a  feoffment  to  another  in  fee,  and  the  disseizee  af- 
terwards re-enter,  he  shall  not  in  that  case  have  an  action  'vi  et 
armis  against  those  who  come  in  by  title  ;  for  tlie  fiction  of 
law  that  the  freehold  has  always  continued  in  the  disseizee  shall 
not  have  relation  to  make  him  who  comes  in  by  title  a  wrong 
doer  vi  et  armis  ;  for,  "  In  fictione  juris  semper  sequitas  existit." 

Formerly,  an  action  of  debt  could  not  be  brought  in  the 
Queen's  Bench,  excepting  on  the  supposition  that  the  defend- 
ant was  an  officer  of  the  court,  or  was  in  custody  of  the  mar- 
shal of  the  court  for  a  supposed  trespass  which  he  had  com- 
mitted, and  which  sup^DOsition  the  defendant  was  not  permitted 
to  dispute  ;  but,  being  so  in  custody,  was  liable  to  be  sued  in 
that  court  for  all  personal  injuries.  And  the  reason  of  this  fic- 
tion of  law  was,  to  prevent  circuity  of  action,  and  to  give  to  the 
plaintiff  a  choice  of  courts  in  which  to  sue  ;  the  action  for  debt 
being  at  that  period  confined  to  the  Court  of  Common  Pleas, 
as  the  only  court  then  having  original  jurisdiction  in  such  ac- 
tions, the  Queen's  Bench  being  a  court  of  appeal  from  that  court. 

The  seizin  of  the  conusee  in  a  fine  also  was  a  fictio  juris^ 
being  an  invented  form  of  conveyance  merely  ;  so  was  a  com- 
mon recovery.  Contracts  made  at  sea,  also,  were  feigned  to 
have  been  made  in  London,  in  order  to  take  the  cognizance  of 


100  LEGAL    MAXIMS. 

all  actions  and  suits  in  respect  thereof  from  the  admiralty 
courts  and  give  it  to  the  courts  of  common  law  at  "Westminster. 

In  fiction  of  law,  "  Rex  non  potest  peccare,"  and  "  Rex 
nunquam  moritur."  In  fiction  of  law,  a  man  in  possession  of 
property  is  considered  to  be  rightfully  in  possession  until  the 
contrary  be  shown  ;  and  a  man  is  considered  to  be  innocent  of 
a  crime  laid  to  his  charge  until  by  a  legally  constituted  tribunal 
he  be  found  guilty.  So,  also,  a  man  being  convicted  of  felony 
and  adjudged  a  felon  is  civilly  dead,  and  incapable  in  the  eyes 
of  the  law  of  making  or  enforcing  any  contract  for  his  benefit. 
All  his  goods  and  chattels,  also,  thereby  become  forfeited  to 
the  crown  ;  but  they  do  not  become  forfeited  until  conviction, 
and  therefore  an  assignment  by  him  thereof  made  after  the 
commission  day  of  the  assizes,  but  before  conviction,  is  valid, 
and  will  defeat  the  title  of  the  crown,  notwithstanding  that 
the  whole  assizes  are  by  fiction  of  law  considered  as  one  day. 

The  law  wiU  not  be  satisfied  with  fiction  where  it  may  be 
otherwise  satisfied,  nor  must  fictions  be  further  used  than  neces- 
sity requires.  A  fiction  must  not  be  contrary  to  law,  nor  must 
it  be  that  which  is  merely  imaginary.  It  must  be  possible  of 
performance,  and  also  equitable  in  its  operation.  It  is  a  rule 
or  form  of  law  that  supposes  a  thing  to  be  which  either  is  or  is 
not.  It  is,  nevertheless,  founded  in  equity,  and  will  not  be 
permitted  to  work  injustice.  Its  proper  operation  is  to  prevent 
mischief,  or  to  remedy  an  inconvenience  which  might  other- 
wise result  from  the  general  rule  of  law.  Recent  legislation 
has,  however,  in  most  instances  supplanted  legal  fiction  by  pos- 
itive statutory  enactment,  that  which  remains  remaining  solely 
from  an  implied  necessity  arising  out  of  public  convenience. 


S  Co.  36;  4  Co.  95 ;  10  Co.  42;  11  Co.  51 ;  13  Co.  2 ;  1  Lill.  Abr.  610; 
1  Inst.  261;  4  Inst.  71,  134;  2  Koll.  Rep.  502;  Hawk.  P.  C.  2,  c.  49,  s.  9; 
3  Bla.  Com.;  Cowp.  177;  1  Lord  Eaym.  516  ;  Whittaker  v.  Wisbey,  12 
C.  B.  44 ;  Littleton  v.  Cross,  3  B.  &  C.  317;  Morris  v.  Pugh,  3  Burr.  1243; 
Barnett  v.  Earl  of  G.  11  Exch.  19;  Bullock  v.  Dodds,  2  B.  &  Aid.  276; 
Roberts  v.  Walker,  1  Russ.  &  M.  753. 


MAXIM  XLIII. 


In  jure  non  remota  causa,  sed  proxima,  spectatur :  (Bac. 
Max.  Eeg.  1.) 

lu  law  the  proximate,  and  not  the  remote,  cause  is  to  be 
regarded. 

THIS  maxim  is  of  general  application,  excepting  in  cases  of 
fraud,  and  refers  to  injury,  damage,  or  loss  sustained,  and 
for  which  compensation  in  damages,  or  other  equivalent,  is 
sought,  when  the  question  arises  as  to  whether  or  not  the  ajpt 
complained  of  was  the  immediate  cause  of  the  injury  or  damage, 
or  was  too  remote  to  render  the  defendant  liable.  As,  in  tort, 
for  libel,  or  slander,  where  a  third  party  seeks  to  take  advantage 
of  the  words  spoken,  or  the  matter  published,  as  having  thereby 
sustained  some  injury  or  lost  some  expected  gain ;  or  in  contract, 
where  damages  are  sought  for  loss  of  some  expected  gain  or 
advantage ;  as  where  two  parties  have  made  a  contract,  which 
one  of  them  has  broken,  the  damages  which  the  other  party 
ought  to  receive  in  respect  of  such  breach  should  be  such  as  may 
reasonably  be  expected  to  arise  from  such  breach  of  contract 
itself,  or  such  as  may  be  supposed  to  have  been  in  contempla- 
tion of  both  parties  at  the  time  they  made  the  contract. 

Thus,  in  an  action  by  the  manager  of  a  theater  against  the 
defendant  for  a  libel  on  an  opera  singer  who  was  under  an 
engagement  with  the  plaintiff  to  sing  at  his  theater,  but  who 
was  deterred  by  reason  of  the  libel,  whereby  the  plaintiff  lost  the 
benefit  of  her  services ;  the  damage  was  held  to  be  too  remote  to 
sustain  an  action  by  the  plaintiff,  the  loss  not  arising  directly 
from  any  act  of  the  defendant,  but  from  some  fear  of  ill-treat- 
ment on  the  part  of  the  person  libeled.  So,  where  slanderous 
words  uttered  by  one  are  repeated  by  another,  the  original  ut- 
terer  is  not  responsible  for  the  consequences  of  their  repetition ; 
as,  where  the  slanderous  words  were  addressed  to  A.,  and  A.  at 


102  LEGAL     MAXIMS. 

a  subsequent  time  and  place,  and  without  authority  from  the 
defendant,  repeated  them  to  B.,  who  in  consequence  refused  to 
trust  the  plaintiff ;  it  was  held  that  tlie  repetition  of  the  words 
was  the  immediate  cause  of  the  damage,  and  not  the  original 
statement,  and  that  the  action  was  not  maintainable.  But  in 
such  case,  if  special  damage  accrue,  the  republication  of  the 
slander  is  actionable,  and  it  is  no  justification  merely  to  give  up 
the  name  of  the  original  utterer.  But  where  the  injury  sustained 
is  the  natural  and  necessary  consequence  of  the  original  act  done, 
there  the  original  mover  in  the  injury  is  responsible  for  all  the 
natural  consequences  of  his  act ;  as,  where  the  defendant  threw 
a  lighted  squib  into  a  market-house  during  a  fair,  and  the  squib 
fell  upon  a  stall,  and  the  stall-keeper,  to  protect  himself,  threw 
the  squib  across  the  market-house,  where  it  fell  upon  another 
stall,  and  was  again  thrown,  and  exploded  near  the  plaintiffs 
eye  and  blinded  him ;  it  was  held  that  the  original  thrower  was 
'responsible  for  the  injury  sustained  by  the  plaintiff,  all  the 
injury  having  arisen  from  the  first  act  of  the  defendant. 

In  action  of  tort  founded  upon  a  contract,  for  breach  of  the 
contract,  the  measure  of  damages  is  the  damage  apparent  at  the 
time  the  contract  is  made,  whether  by  inference  or  by  special 
information  to  the  contracting  parties ;  and  sj)eculative  damages 
arising  from  loss  of  contemplated  profits  cannot  be  recovered. 
But  where  plaintiff  told  the  defendant  that  the  admiralty  con- 
tracts were  out  for  coals,  and  inquired  if  he  had  any  tonnage 
to  offer,  which  he  having,  chartered  a  ship  of  him,  but  the  ship 
not  being  ready  in  time,  the  plaintiff  engaged  another ;  it  was 
held  that  he  was  entitled  to  recover,  as  damages  for  breach  of 
the  charter,  the  extra  expense  incurred  by  him  in  so  forward- 
ing the  coals. 


Bac.  Max.  Reg.  1;  Ashley  «.  Harrison,  1  Esp.  48;  Redman  v.  Wilson, 
14  M.  &  W.  476;  Luraley  v.  Guy,  3  E.  &  B.  416;  Powell  v.  Gudgeon,  5  M. 
&  S.  431 ;  Hadley  v.  Baxendale,  23  L.  J.  179,  Ex. ;  Ward  v.  AYeeks,  7  Bing. 
211;  Vickers  v.  Wilcocks,  8  East,  3;  Scott  v.  Shepherd,  3  Wils.  403; 
McPherson  v.  Daniels,  10  B.  &  C.  273;  Portman  v,  Nichol,  31  L.  T.  152; 
Prior  V.  Wilson,  1  L.  T.  (N.  S.)  549. 


MAXIM  XLIV. 


Interest  rei^uhlicce  ut  sit  finis  litium :  (Co.  Litt.  303.) 
It  concerns  the  State  that  there  he  an  end  of  lawsnits. 

THIS  maxim  is  well  known,  and  constantly  applied  in  prac- 
tice.    Within  its  meaning  are  the  statutes  of  limitation 
and  set-off,  the  law  of  estoppels,  &c. 

The  statutes  for  the  limitation  of  actions  form  a  principal 
feature  in  this  maxim ;  for  example,  upon  the  principle  of  this 
maxim  personal  actions,  as  actions  on  the  case,  not  slander,  ac- 
count, trespass,  simple  contract  deht,  detinue  and  replevin  for 
goods  or  cattle,  and  trespass  quare  clausum  f  regit,  must  be 
brought  within  six  years ;  trespass  for  assault,  battery,  wound- 
ing, or  imprisonment,  within  four  years ;  and  case  for  words, 
within  two  years  ;  saving  disabilities.  And  in  real  actions  to 
recover  land  or  rent,  within  twenty  years  after  the  right  of 
action  accrued,  saving  disabilities ;  but  limited  to  forty  years 
notwithstanding  disabilities.  And  as  to  advowsons,  within  one 
hundred  years  at  the  uttermost. 

The  rule  as  to  limitation  of  actions  at  law  holds  good  also 
in  suits  in  equity,  and  courts  of  equity  will,  as  nearly  as  can 
be,  be  guided  in  their  decisions  by  the  statutes  limiting  actions 
at  law.  Courts  of  equity  will  not,  however,  apply  the  statutes 
of  limitation  to  cases  of  breaches  of  trust,  nor  where  an  ac- 
count is  sought  from  a  trustee  or  agent,  of  moneys  intrusted  to 
him.  So  no  lapse  of  time  will  prevent  a  court  of  equity  open- 
ing and  looking  into  transactions  and  accounts  between  parties 
standing  in  the  position  of  trustee  and  cestui  que  trust,  where 
the  transactions  between  them  have  not  been  closed  owing  to 
no  fault  of  the  cestui  que  trust.  But  it  is  otherwise  where  they 
have  been  closed  and  settled. 

Where  the  defendant  in  a  suit  in  Chancery  had  omitted  to 
enroll  the  decree,  and  many  years  afterwards  sought  to  enroll 


104  LEGAL    MAXIMS. 

and  to  appeal ;  there  having  been  a  subsequent  decree  in  an- 
other suit  by  a  judge  of  co-ordinate  authority  at  variance  with 
the  decision  so  long  acquiesced  in ;  it  was  considered  too  late 
to  admit  of  the  time  for  enrollment  being  extended  for  such 
purpose,  the  time  for  appealing  having  been  allowed  to  expire 
by  the  defendant  on  the  assumption,  as  was  reasonable  to  pre- 
sume, that  there  was  no  ground  for  appealing.  So,  also,  where, 
on  a  transfer  of  shares  in  a  company  and  retirement  of  some 
of  the  shareholders  by  arrangement  of  the  directors,  it  was, 
after  a  lapse  of  twelve  years,  sought  to  make  one  of  such  retir- 
ing shareholders  a  contributor ;  in  such  case  it  was  held  that 
the  lapse  of  time  was  a  bar,  and  that  the  arrangement  so  long 
acquiesced  in  could  not  be  disturbed.  In  this  case  the  M.  R. 
referred  to  the  maxim  under  consideration  as  being  very  im- 
portant, and  it  was  there  applied  by  him  to  remedy  an  incon- 
venience caused  by  laches,  and  where  the  parties  could  not  be 
put  into  the  same  position  as  formerly,  though  there  was  not 
any  allegation  of  fraud.  It  has  been  held,  also,  in  a  case  of 
gross  fraud,  being  that  of  a  trustee  who  ]iad  bought  a  reversion 
from  his  cestui  que  trust  at  an  inadequate  value,  that  seventeen 
years  after  the  transaction,  and  fourteen  years  after  the  death 
of  the  tenant  for  life,  when  the  reversion  fell  in,  the  transac- 
tion could  not  be  set  aside  solely  on  the  ground  of  lapse  of 
time.  And,  again,  in  a  case  between  a  solicitor  and  his  client, 
the  court  considered  that  eighteen  years  was  sufficient  to  pre- 
vent it  from  looking  into  the  transaction.  Though,  in  another 
case,  a  purchase  from  a  client  by  a  solicitor  was  successfully 
impeached,  in  a  suit  even  against  his  executors,  after  a  like 
period  of  eighteen  years. 


Co.  Litt.  303;  11  Co.  69;  Roberts  v.  Tunstall,  4  Hare,  257:  Gregory  v. 
Gregory,  Coop.  201;  Champion  ®.  Rigby,  1  Russ.  &  M.  539;  21  Jac.  1, 
c.  16  ;  19  &  20  Vict.  c.  97  ;  3  &  4  Will.  4,  c.  27;  Sheldon  v.  Weldman, 
Ch.  C.  26  ;  Re  A.  C.  I.  Go.  ex  parte  Brotherhood,  7  L.  T.  (N.  S.)  56,  on 
app.  lb.  142;  Wedderburn  v.  Wedderburn,  2  Keen,  749;  Bright  v.  Leger- 
ton,  30L.  J.  343,  Cli.;  Beavan  v.  Countess  of  .M.  2  L.  T.  C^".  S.)  677; 
Gresley  v.  Mosley,  5  Jur.  (N.  S.)  583. 


MAXIM  XLV. 


Jus  accrescencU  inter  mercatores,  pro  'beneficio  cotiunercii, 

locum  nan  liahet :  (Co.  Litt.  182.) 
For  the  benefit  of  commerce,  there  is  not  any  right  of 

survivorship  among  merchants. 

RIGHT  of  survivorship  is  where  two  persons  being  jointly 
interested  in  property,  one  of  them  dies,  in  which  case  the 
share  of  the  one  dying  accrues  to  the  survivor. 

In  ordinary  cases  of  joint  contractors  or  joint  tenants,  all  of 
them  whilst  living  have  a  joint  interest  in,  and  right  of  action 
upon,  the  contract ;  but  if  one  die,  the  right  of  action  vests  in 
the  survivor,  who  alone  can  sue.  So,  if  a  bond  be  made  to 
three  persons  to  secure  the  payment  of  a  sum  of  money  to  one 
of  them,  who  afterwards  dies,  the  survivors,  though  they  have 
no  interest  in  the  money,  are  the  only  parties  entitled  to  sue 
for  it.  So,  if  all  of  several  joint  contractors  die,  the  right  of 
action  vests  in  the  executors  or  administrators  of  the  last  sur- 
vivor. And  where  a  sum  of  money  in  the  funds  stands  in  the 
name  of  two,  and  one  of  them  dies,  the  survivor  takes  the  whole 
at  law,  subject,  however,  to  any  equities  there  may  be  attached 
to  it.  So,  if  land  be  conveyed  or  devised  to  two  as  joint  ten- 
ants, the  survivor  shall  have  the  whole.  Such  joint  tenancy 
may,  however,  be  determined  at  the  will  of  any  of  the  parties 
during  their  joint  lives,  by  conveyance  or  other  disposition  of 
the  interest  of  one  or  more  of  them ;  for,  to  constitute  a  joint 
tenancy  the  accruing  of  the  interest  of  the  several  joint  ten- 
ants must  be  simultaneous,  their  titles  being  one  and  not  several. 
The  joint  tenancy,  however,  cannot  be  severed  by  devise,  for 
no  devise  can  take  effect  living  the  devisor.  The  law  is  other- 
wise as  to  parceners ;  that  is,  where  lands  descend  to  females 
only ;  in  which  case,  if  they  do  not  make  partition,  severally 


106  LEGAL    MAXIMS. 

convey,  or  devise,  wliicli  they  may  do,  whilst  living,  their  re- 
spective interests  will  descend  to  their  respective  heirs. 

There  is  no  such  right  of  survivorship,  however,  amongst 
merchants  in  mercantile  transactions ;  and  this  is  for  the  ben- 
efit of  commerce ;  but  the  share  of  a  deceased  partner  in  the 
partnership  goods,  chattels  and  debts,  goes  to  his  jDcrsonal  rep- 
resentatives, and  is  distributable  amongst  them  in  the  same 
manner  as  it  would  have  been  in  case  of  dissolution  of  the 
partnership  inter  vivos.  The  right  of  action,  or  legal  interest, 
however,  in  the  debts  and  other  choses  of  action  of  the  part- 
nership, survives  to  the  surviving  partner,  who  alone  is  entitled 
at  common  law  to  sue  upon  all  contracts  made  with  the  part- 
nership during  its  existence,  only,  however,  for  the  joint  benefit 
of  himself  and  the  representatives  of  his  deceased  partner,  to 
whom  he  is  accountable,  in  equity,  for  the  share  of  the  deceased 
partner.  But  the  surviving  partner  has  no  jus  disponendi  of 
the  partnership  effects  as  against  the  personal  representatives 
of  the  deceased  partner,  excepting  for  the  purpose  of  paying 
partnership  debts  and  liabilities.  And  this  rule  applies  as  well 
to  real  estate  purchased  by  the  partners  for  partnership  pur- 
poses, with  partnership  assets,  as  to  the  ordinary  personal  chat- 
tels of  the  partnership,  and  which  real  estate  is  treated  by  a 
court  of  equity,  for  the  purpose  of  account  and  distribution 
amongst  the  personal  representatives  of  the  deceased  partner, 
as  personal  property,  and  so  passes  to  them.  It  may  be  here 
observed  that  where  the  partnership  business  is  carried  on  upon 
premises  belonging  to  one  of  the  partners,  the  others,  upon  dis- 
solution of  the  partnership  by  his  death  or  otherwise,  have  no 
right  to  continue  in  the  occupation  of  the  premises,  unless  un- 
der a  special  agreement  for  that  purpose. 


Co.  Litt.  183,  243,  377,  380;  1  Inst.  164,  180,  188;  3  Brown,  99  ;  Noj 
Max.  79  ;  1  Burr.  115  ;  Darby  v.  Darby,  3  Drew,  495;  Buckley  v.  Barber, 
20  L.  J.  117,  Ex. ;  Crossfield  v.  Such,  23  L.  J.  325,  Ex. ;  Fereday  ».  White- 
wick,  1  Russ.  &  M.  49;  Phillips  «.  Phillips,  1  My.  &  K.  663;  Crawshay  v. 
Maule,  1  Swanst.  521  ;  Taylor  v.  Taylor,  3  De  G.  M.  &  G.  190 ;  Rolls  v. 
Tate,  Yelv.  177;  Benham  v.  Gray,  5  C.  B.  141. 


MAXIM  XL VI. 


Leges  posteriores  priores  contrarias  ahrogant :  (1  Co.  25.) 
Later  laws  abrogate  prior  cpntrary  ones. 

THE  laws  of  this  country  are  made  by  Parliament ;  tliat  is, 
by  a  body  composed  of  Queen,  Lords,  and  Commons  ;  and 
what  one  Parliament  can  do  another  can,  that  is,  make  laws  ; 
and  the  abrogation  of  an  existing  law  is  no  more  than  the  mak- 
ing of  a  new  law ;  and  to  deny  to  a  Parliament  the  power  to 
abrogate  an  existing  law  is  to  deny  to  it  the  power  to  make  any 
law. 

The  power  by  which  laws  are  made  must  be  supreme,  and, 
if  supreme,  there  can  be  no  limit  to  its  authority.  Subsequent 
laws,  therefore,  repeal  prior  laws  inconsistent  therewith,  and 
that  whether  they  be  made  by  a  Parliament  composed  of  the 
same  or  of  different  persons ;  that  is,  the  same  or  a  subsequent 
Parliament,  in  the  same  or  a  subsequent  session  of  Parliament. 

The  common  law  and  customs  of  the  kingdom  are  also  sub- 
servient to  Parliament,  and  are  abrogated  by  its  enactments. 
Statutes  begin  to  operate  on  the  day  they  receive  the  royal  as- 
sent, unless  special  provision  be  made  in  them  to  the  contrary ; 
and  from  that  day  all  laws  contrary  thereto  are  considered  as 
abrogated  thereby. 

The  following  maxim  serves  to  illustrate  this  subject : 
"  Perpetua  lex  est  nuUam  legem  humanam  ac  positivam  per- 
petuam  esse,  et  clausula  quae  abrogationem  excludit  ab  initio 
non  valet " — It  is  an  eternal  law  which  says  that  no  human 
positive  law  shall  be  perpetual,  and  a  clause  excluding  abroga- 
tion is  bad  from  the  commencement. 

Sir  William  Blackstone  says,  that  where  the  common  and 
statute  law  differ,  the  common  law  gives  place  to  the  statute  ; 
and  an  old  statute  gives  place  to  a  new  one :  and  this  upon  a 
general  principle   of  universal  law,   that    "  leges  posteriores 


108  LEGAL    MAXIMS. 

priores  contrarias  abrogant ; "  according  to  which  it  was  laid 
down  by  a  law  of  the  twelve  tables  at  Rome,  that  "  quod  popu- 
lus  postremum  jussit,  id  jus  ratum  esto  :  "  but  that  that  was  to 
be  understood  only  when  the  latter  statute  was  couched  in  nega- 
tive terms,  or  was  so  clearly  repugnant  as  necessarily  to  imply 
a  negative.  As,  if  a  former  act  said  that  a  juror  upon  such  a 
trial  should  have  twenty  pounds  a  year,  and  a  new  statute  en- 
acted that  he  should  have  twenty  marks  ;  there  the  latter  stat- 
ute, though  it  did  not  express,  yet  necessarily  implied,  a  nega- 
tive, and  virtually  repealed  the  former.  But,  if  both  statutes 
were  merely  affirmative,  and  the  substance  of  each  of  them 
such  that  both  could  well  stand  together,  the  latter  would  not 
repeal  the  former,  but  they  should  both  be  construed  together. 
So,  if  by  a  law  an  offense  is  made  indictable  at  the  quarter  ses- 
sions, and  a  subsequent  statute  makes  the  same  offense  indict- 
able at  the  assizes  ;  here,  the  jurisdiction  of  the  sessions  is  not 
taken  away,  but  both  have  a  concurrent  jurisdiction ;  unless 
the  new  statute  by  express  words  makes  the  offense  indictable 
at  the  assizes  and  not  elsewhere. 

It  is  also  said  that  an  Act  of  Parliament  cannot  be  altered, 
amended,  dispensed  with,  suspended,  or  repealed,  but  in  the 
same  form  and  by  the  same  authority  of  Parliament  as  that  by 
which  it  was  created,  for  it  requires  the  same  strength  to  dis- 
solve as  to  make  this,  as  well  as  any  other,  legal  obligation. 
And  this  is  in  accordance  with  the  common  rule  of  law  which 
holds  that,  "Mhil  tam  conveniens  est  natural!  aequitati  quam 
-unumquodque  dissolvi  eo  ligamine  quo  ligatum  est " — !N^othing 
is  so  consonant  to  natural  equity  as  that  the  same  thing  be  dis- 
solved by  the  same  means  as  that  by  which  it  was  created. 


2  Roll.  Rep.  410;  1  Co.  25;  11  Co.  63;  1  Bla.  Com.  92,  18  ed.;  Jenk. 
Cent.  2;  3  Atk.  674;  Bac.  Max.  Reg.  19;  Reg.  v.  Mayor  of  London,  13 
Q.  B.  1  ;  Paget  v.  Foley,  2  Bing.  N.  C.  679;  Stuart  v.  Jones,  1  E.  &  B.  22; 
Hellawell  v.  Eastwood,  6  Exch.  295  ;  Rix  v.  Borton,  12  A.  &  E.  470 ;  Long- 
ton  V,  Hughes,  1  M.  &  S.  597;  Dakins  v.  Seaman,  9  M.  &  W.  777;  Ma- 
lioney  v.  Wright,  10  L-.  Com.  Law  Rep.  420;  33  Geo.  3,  c.  13 ;  7  &  8  Geo. 
4,  c.  28 ;  18  &  14  Vict.  c.  21 ;  Reg.  v.  Sillem,  11  L.  T.  (N.  S.)  233. 


MAXIM  XLVII. 


Licet  disjwsitio  de  interesse  fiituro  sit  inutilis  tamen  fieri 
potest  declaratio  preecedens  qucs  sortiatur  effectum,  intcr- 
veniente  novo  actu :  (Bac.  Max.  Eeg.  14.) 

Although  the  grant  of  a  future  interest  is  invalid,  yet  a 
precedent  declaration  may  be  made,  which  will  take 
effect  on  the  intervention  of  some  new  act. 

rilO  pass  a  right  to  property  by  transfer,  in  goods  and  chat- 
-■-  tels,  the  goods  and  chattels  intended  to  be  transferred 
must  be  in  existence,  and  their  identity  ascertained  at  the  time 
of  the  proposed  transfer.  So,  where  a  contract  was  made  for 
the  sale  and  purchase  of  an  ascertained  cargo  of  corn  at  a 
fixed  price,  the  corn  then  being  on  board  a  vessel  at  sea  on  its 
way  to  Great  Britain,  and  previously  to  the  making  of  the 
contract  the  vessel  had  been  driven  by  stress  of  weather  into 
a  foreign  port,  and,  the  corn  becoming  heated,  liad  been  sold 
by  the  shipmaster  to  prevent  total  destruction ;  it  was  held 
that  the  first  mentioned  contract  was  void,  as  the  vendor  had 
nothing  to  sell  at  the  time  of  making  the  contract,  the  cargo 
of  corn  not  being  then  in  existence  on  board  the  ship.  And, 
again,  where  one  by  deed  for  valuable  consideration  assigned  to 
another,  "  all  and  singular  his  goods,  household  furniture,  &c., 
then  remaining  and  being,  or  which  should  at  any  time  there- 
after remain  and  be,  in,  upon,  or  about  his  dwelling-house," 
&c. ;  it  was  held  that  goods  subsequently  acquired  by  the  as- 
signor, and  brought  into  the  house,  did  not  pass  to  the  assignee 
under  such  deed.  So  in  all  cases  where  a  man  assigns  goods 
and  chattels  not  then  in  his  possession,  but  the  future  acquire- 
ment of  which  he  contemplates,  without  including  in  such  as- 
signment a  sufficient  authority,  such  as  a  power  of  attorney, 
to  take  possession  of  them,  and  without  such  taking  posses- 
sion, pursuant  to  the  authority,  before  some  other  right,  as 


110  LEGAL    MAXIMS. 

that  of  an  execution  creditor,  intervenes  ;  the  assignment  does 
not  operate  to  pass  any  interest  in  such  future  acquired  goods 
and  chattels.  But  it  is  otherwise  where  there  is  such  au- 
thority given,  and  such  after-possession  taken ;  for,  though  a 
man  cannot  pass  the  property  in  goods  lie  has  not,  he  can  give 
a  right  take  possession  of  them  when  acquired.  The  following 
case  illustrates  the  maxim : — Where  by  bill  of  sale  a  farmer  as- 
signed all  his  goods,  chattels  and  effects,  and,  inter  alia,  growing 
crops,  with  a  power  to  take  possession  of  future  acquired  prop- 
erty ;  it  was  held  that,  as  to  the  future  and  after  acquired  prop- 
erty referred  to  in  the  bill  of  sale,  which  by  the  deed  the  cred- 
itor was  authorized  to  seize,  but  which  remained  in  the  j^osses- 
sion  of  the  debtor  at  the  time  of  filing  a  petition  in  bankruptcy 
against  him,  the  creditor  could  not  avail  himself  of  the  se- 
curity, because  he  had  not  seized  them  under  his  power.  Had 
he  seized  them,  however,  and  acquired  actual  possession,  pur- 
suant to  the  power  given  him  by  the  bill  of  sale,  before  the 
filing  of  the  petition,  it  would  have  been  as  much  protected 
against  the  other  creditors  of  the  assignor  as  if  he  had  actually 
been  possessed  of  the  property  at  the  time  of  making  the  bill 
of  sale. 

A  tenant's  interest  in  future  crops  may,  however,  be  passed 
with  his  interest  in  the  land,  and  the  crops  thereby  become  the 
property  of  the  assignee  on  their  coming  into  existence.  Such 
interest  is  called  emblements ;  that  is,  the  right  to  reap  the 
fruits  of  seed  sown,  roots  planted,  and  other  artificial  produce 
of  the  land ;  and  ingress,  egress,  and  regress  to  enter,  cut,  and 
carry  away  the  same  after  the  tenancy  is  determined ;  and  this 
right  of  the  tenant  accrues  to  his  grantee,  assignee,  or  devisee, 
in  like  manner  as  it  existed  in  him. 


Bac.  Max.  Reg.  14;  Co.  Litt.  56;  Shepp.  Touch.  244;  Latham  v.  Att- 
wood,  Cro.  Car.  515  ;  Com.  Dig.  Grants,  D ;  Grantham  v.  Hawley,  Hob. 
133;  Strickland  v.  Turner,  22  L.J.  115,  Ex.;  Price  t).  Groom,  2  Exch. 
542 ;  Lunn  «.  Thornton,  1  C.  B.  379  ;  Gale  v.  Bumell,  7  Q.  B.  863  ;  Con- 
greve  v.  Evetts,  23  L.  J.  273,  Ex.  ;  Baker  v.  Gray,  25  L.  J.  161,  C.  P.  ; 
Fetch  V.  Tutin,  15  ^l.  &  W.  110 ;  Hastie  v.  Couturier,  9  Exch.  102;  Barr 
».  Gibson,  3  M.  &  W.  390. 


MAXIM  XLVIII. 


Modus  et  conventio  vincunt  legem :  (2  Co.  73.) 
Custom  aud  aofueement  overrule  law. 


"&' 


THIS  maxim  refers,  of  course,  to  those  persons  and  things 
subject  to  the  custom  and  the  agreement ;  and,  so  far  as 
they  are  individually  concerned,  the  law  relating  to  them  is 
overruled  by  them ;  with  this  exception,  that  the  custom  be 
not  unreasonable,  and  that  the  agreement  be  not  in  contraven- 
tion of  any  law  relating  to  third  parties,  or  to  the  welfare  of 
the  public ;  as,  for  instance,  a  custom  to  take  soil  from  the 
land  of  another  without  stint  and  without  accounting  for  the 
profits,  or,  an  agreement  to  compromise  a  felony,  or  to  buy  off 
opposition  to  a  bankrupt  obtaining  his  discharge  under  the 
bankrupt  laws. 

An  instance  showing  the  connection  existing  betwen  cus- 
tom and  law,  in  the  absence  of  any  special  agreement  between 
the  parties,  is  this  : — It  is  a  rule  of  law  that  in  the  case  of 
houses  or  lands  let  from  year  to  year,  six  months'  notice  to 
quit  by  either  party,  to  expire  at  the  time  of  entry,  must  be 
given :  custom,  however,  in  different  counties  and  places,  over- 
rules this ;  and,  as  to  the  house,  the  tenant  is  entitled  to  retain 
possession  to  one  time,  and,  as  to  the  land,  to  another,  accord- 
ing to  the  particular  custom.  A  custom,  to  be  of  force  as 
such,  must  be  of  general  application,  and  largely  prevalent  in 
the  district  in  which  it  is  supposed  to  be  applied,  so  that  every 
person  may  be  taken  to  be  dealing  with  a  full  knowledge  of  it. 
Therefore,  where  an  agreement  to  let  lands  was  made  deter- 
minable on  six  months'  notice  to  quit  on  either  side,  aud  it  was 
attempted  to  be  shown  that  by  the  custom  of  the  locality,  and 
particularly  in  all  leases  and  agreements  with  reference  to  the 
landlord's  estate,  it  had  always  been  the  custom  to  give  six  cal- 
endar months'  notice  to  quit  before  the  expiration  of  the  cur- 


112  LEGAL    MAXIMS. 

rent  year  of  tlie  term,  and  that  by  such  custom  the  six  months' 
notice  mentioned  in  the  agreement  meant  calendar  months  ;  it 
was  held  that  the  word  "  inonths "  primarily  meant  lunar 
months,  and  though  the  custom  of  a  district  might  be  suflScient 
to  vary  that  meaning,  the  custom  of  a  small  estate  would  not. 

A  custom  must  be  reasonable  and  certain ;  and,  therefore,  a 
claim  by  custom  or  prescription  to  grant  licenses  to  work  stone 
quarries,  in  alieno  solo,  without  stint  or  limitation,  and  with- 
out accounting  for  the  j^rofits,  cannot  be  maintained.  For  this 
would  be  a  profit  d  'prendre,  which  cannot  be  claimed  by  cus- 
tom in  another's  land ;  as,  otherwise,  a  man's  soil  might  thus 
be  subject  to  grievous  burdens  in  favor  of  successive  multi- 
tudes of  persons,  as  the  inhabitants  of  a  parish  or  other  dis- 
trict, who  could  not  release  the  right,  and  which  would  tend 
to  the  destruction  of  the  inheritance  and  exclusion  of  the 
owner. 

Where  lands  and  buildings  are  leased  without  any  express 
stipulation  as  to  repairs,  tillage,  «fec.,  a  covenant  will  be  implied 
on  the  part  of  the  lessee  that  he  will  use  the  buildings  in  a 
proper  tenant-like  manner,  and  manage  and  cultivate  the  lands 
in  a  good  husband-like  manner,  according  to  custom ;  but  not 
that  he  will  keep  the  buildings  in  repair,  or  do  any  act  not  re- 
quired in  an  ordinary  tenancy.  Custom  attaches  itself  to  all 
contracts  relating  to  lands  within  the  limits  of  the  custom, 
and  is  considered  as  incorporated  therewith,  unless  expressly 
excluded  therefrom.  The  following  maxims  are  applicable  to 
the  exceptions  above  mentioned : — "  Pacta  privata  jura  publica 
derogare  non  possunt ; "  and  "  Pacta  quae  contra  leges  constitu- 
tionesque,  vel  contra  bonos  mores  fiunt,  nullum  vim  habere, 
indubitate  juris  est." 


Sbepp.  Toucli.  1G3;  2  Co.  73  ;  7  Co.  23;  C.  2,  3,  6 ;  1  Lev.  162;  Hold- 
ing V.  Piggott,  7  Bing.  465 ;  BrowB  ■».  Crump,  6  Taunt.  300 ;  Webb  v. 
Plummer,  3  B.  &  A.  746  ;  Race  v.  Ward,  4  E.  &  B.  705 ;  Martin  v.  Clue, 
18  Q.  B.  661 ;  Morrison  v.  Chadwick,  7  C.  B.  266 ;  Clarke  v.  Roystone, 
13  M.  &  W.  753;  Harnett  «.  Maitlaud,  16  M.-&  W.  257;  Womersley  r. 
Dalby,  26  L.  J.  219,  Ex.  ;  Attorney  General  v.  Matbias,  31  L.  T.  367 ; 
Rogers  v.  Kingston-on-HuU  D.  C.  11  L.  T.  (N.  S.)  42. 


MAXIM  XLIX. 


Necessitas  inducit  ])rivilegium  quoad  jura  ])rivata :    (Bac. 

Max.  25.) 
J!s"ecessity  induces,    or  gives,  a  privilege  as  to  private 

rights. 

THE  privileges  given  to  one  acting  in  tlie  exercise  of  private 
rights  are  said  to  arise  out  of  the  necessity  for  self-pres- 
ervation ;  for  obedience  ;  and  the  necessity  resulting  from  the 
act  of  God.  Of  the  necessity  for  seK-preservation,  justifiable 
homicide,  or  the  killing  of  another  in  self-defense,  or  in  defense 
of  master  or  servant,  parent  or  child,  husband  or  wife,  is  an 
example  ;  and  this  apj)lies  to  property  as  well  as  to  the  person ; 
as,  to  defend  the  person  or  jjroperty  against  thieves.  Of  the 
necessity  for  obedience,  i.  e.,  obedience  to  the  laws ;  as,  where 
an  officer  of  government,  civil  or  military,  in  the  execution  of 
a  lawful  command,  causes  death  :  for  example,  where  a  sheriff's 
officer,  in  the  execution  of  a  civil  process,  as  giving  possession 
of  lands  or  houses  under  a  writ  of  habere  facias  possessionem^ 
calls  to  his  aid  the  posse  comitatus,  and  in  the  affray  death  en- 
sues. Of  the  necessity  resulting  from  the  act  of  God,  may  be 
mentioned  that  in  which  an  idiot,  lunatic,  or  person  laboring 
under  some  mental  or  bodily  impotency,  is  held  not  to  be 
responsible  for  his  acts. 

"  I^ecessitas  non  habet  legem  " — Necessity  has  no  law,  is 
another  branch  of  the  same  maxim.  This  necessity  as  regards 
the  mind  of  man,  and  his  acts  under  influence  of  that  mind,  is, 
where  a  man  is  compelled  to  do  what  otherwise  he  would  not 
consent  to ;  where  he  is  impelled  to  do  what  his  conscience  re- 
jects. And,  so  considered,  the  law  allows  him  certain  privi- 
leges, and  excuses  him  those  acts  which  are  done  through  una- 
voidable force  and  compulsion,  which  would  otherwise  be 
punishable  as  breaches  of  the  law.      But,  this  privilege  is  in 


114  LEGAL     MAXIMS. 

strictness  limited  to  breaches  of  the  law  as  regards  private 
rights ;  for  a  man's  private  rights  must  be  sacrificed  to  the 
public  good,  and  this  of  necessity  also  ;  for  public  necessity  is 
greater  than  private :  "  Necessitas  publica  major  est  quara 
privata." 

The  christian  burial  of  the  poor  is  a  necessity  which  cannot 
be  denied  them ;  so  he  in  whose  house  a  poor  person  dies  is 
bound  to  bury  the  body  decently  :  he  cannot  keep  it  unburied, 
or  do  anything  to  prevent  its  proper  burial ;  nor  can  he  cast  it 
out,  or  expose  it  so  as  to  offend  the  feelings  or  endanger  the 
health  of  the  living.  And  upon  this  principle  a  mandamus 
will  be  granted  to  the  rector  of  a  parish  to  compel  him  to  bury 
a  corpse ;  and  so  also  will  a  mandamus  go,  for  the  like  reason, 
to  a  jailer  to  deliver  up  the  body  of  a  deceased  debtor  to  his 
executors. 

It  was  once  a  common  notion  that  the  body  of  a  deceased 
debtor  could  be  taken  in  execution  for  a  debt  owing  by  him  at 
the  time  of  his  decease  ;  and  tliat  notion  was  encouraged  by  the 
fact  that  a  case  had  actually  occurred,  and  existed  in  the  law 
books,  where  a  woman,  fearing  that  the  dead  body  of  her  son 
would  be  arrested  for  debt,  promised,  in  consideration  of  for- 
bearance, to  pay,  and  she  was  held  liable  upon  such  promise. 
It  has,  however,  since  been  stated  in  another  case  that  such  rul- 
ing was  contrary  to  every  principle  of  law  and  morality,  and 
such  an  act  was  revolting  to  humanity  and  illegal,  and  that  any 
promise  extorted  by  fear  of  it  could  not  be  valid  in  law. 

The  necessity  which  exists  amongst  mankind  that  they 
should  bury  their  dead  out  of  their  sight,  alone  gives  the  priv- 
ilege of  possession  of  the  body  to  those  to  whom  it  naturally 
belongs  ;  and  it  is  only  in  very  dark  ages,  and  when  reason  is 
perverted  by  superstitious  folly,  that  a  contrary  notion  can 
possibly  prevail. 


Bac.  Max.  25;  12  Co.  63;  1  Hale  P.  C.  5i,  434;  Co.  Litt.  217 ;  Jenk. 
Cent.  280;  Noy  Max.  32  ;  4  Bla.  Com.;  R.  v.  Antrobus,  2  A.  &  E.  788; 
Gore  V.  Gibson,  13  M.  &  W.  G23;  Quick  v.  Coppleton,  1  Lev.  162  ;  Mc- 
Naughten's  Case,  10  CL  &  Fin.  200 ;  Rex  v.  Coleridge,  2  B.  &  Aid,  809  ; 
Reg.  1}.  Stewart,  12  A.  &  E.  773 ;  Reg,  v.  Fox,  2  Q.  B,  246 ;  .Jones  v.  Ash- 
burnham,  4  East,  459. 


MAXIM  L. 


Nemo  debet  Ms  vexari,  si  constat  ciirice  quod  sit  pro  und  et 

eddem  causa:  (5  Co.  61.) 
Ko  one  ought  to  be  twice  i)uiiished,  if  it  be  proved  to 

the  court  that  it  be  for  one  and  the  same  cause. 

N  pursuance  of  this  maxim,  a  judgment,  or  7'es  judicata, 
between  the  same  parties  is  held  to  be  final,  and  neither 
party  can  by  a  fresh  action  reopen  the  question  so  determined. 
Nor  can  they  otherwise  impeach  the  decision,  excej^ting  for 
manifest  error  upon  the  face  of  the  proceedings,  or  for  fraud, 
surprise,  or  some  failure  of  justice  in  the  trial  of  the  action, 
and  in  respect  of  which  a  new  trial  will  be  granted.  And  a 
plea  of  judgment  recovered  in  a  court  of  concurrent  jurisdic- 
tion directly  upon  a  point  is,  as  a  plea  or  as  evidence,  conclu- 
sive ujjon  the  same  matter  between  the  same  parties  in  any 
such  action.  So,  also,  a  judgment  between  the  same  parties 
for  the  same  cause  of  action  is  conclusive,  although  the  form 
of  action  is  different ;  as,  a  verdict  in  an  action  of  trover  is  a 
bar  in  an  action  for  money  had  and  received  brought  for  the 
value  of  the  same  goods.  The  main  reason  why  such  judg- 
ment is  considered  final,  and  cannot  be  reopened  by  another 
action,  is  that  the  cause  of  action  is  merged  in  tlie  judgment, 
or,  as  it  is  called,  transit  in  rem  judicatam  /  and  there,  in  fact, 
does  not  exist  any  cause  of  action,  so  far  as  the  matter  in  dis- 
pute in  the  original  action  is  concerned,  in  respect  of  which  an 
action  can  be  brought.  Judgment  in  ejectment  is,  however, 
an  apparent  exception  to  this  rule ;  for,  though  it  may  be  ad- 
mitted in  evidence  between  the  same  parties  in  a  subsequent 
action,  for  some  purposes,  for  the  same  lands,  it  is  not  a  bar  to 
the  action,  nor  can  it  be  pleaded  by  way  of  estoppel. 

Under  this  rule  may  be  classed  all  apjilications  for  new 
trials  and  appeals,  and  whicli  arc,  in  fact,  in  the  nature  of  fresh 


116  LEGAL    MAXIMS. 

actions  for  the  same  cause.  And,  tlierefore,  the  courts  are 
careful  not  to  grant  new  trials  unless  the  justice  of  the  case 
absolutely  requires  it.  So  a  new  trial  for  the  improper  admis- 
sion of  evidence  has  been  refused  where  there  appeared  to  be 
sufficient  evidence  to  support  the  verdict  given  independently 
of  the  evidence  so  improperly  admitted.  Also  where  the  ac- 
tion is  trifling  in  amount,  as  for  a  sum  not  exceeding  201.,  or 
vexatious.  In  penal  actions,  where  a  verdict  is  found  for  the 
defendant,  a  new  trial  is  never  granted  ;  nor  is  a  new  trial 
often  granted  in  ejectment  where  the  verdict  complained  of 
has  been  found  for  the  defendant ;  nor  in  replevin,  except  upon 
very  clear  grounds.  So,  if  the  jury  at  a  second  trial  find  for 
the  party  against  whom  the  former  verdict  was  given,  the 
court  may  be  induced,  under  special  circumstances,  to  grant  a 
new  trial ;  but  the  losing  party  is  not  in  such  case  entitled  to 
it  as  of  right  by  any  rule  or  practice  of  the  court,  and  they 
have  refused  it  where  the  second  verdict  was  satisfactory.  So 
a  third  trial  is  seldom  granted  after  two  concurring  verdicts, 
and  in  such  case  the  court  has  refused  to  grant  it,  even  though 
the  judge  before  whom  the  second  trial  was  tried  was  dissatis- 
fied with  the  verdict. 

To  this  maxim  may  be  added  that  applicable  to  criminal 
cases  :  "  Nemo  debet  bis  puniri  pro  uno  delicto  " — No  one  shall 
be  punished  twice  for  one  crime.  The  rule  in  such  cases  being, 
that  a  man  being  indicted  for  an  offense  and  acquitted  cannot 
be  again  indicted  for  the  same  offense,  and,  if  so  indicted,  may 
plead  autrrfois  acquit,  even  in  case  of  a  charge  of  murder. 


4  Co.  43;  5  Co.  61 ;  Duchess  of  Kingston's  Case,  20  How.  St.  Tr.  538; 
Blade's  Case,  4  Co.  94 ;  Doe  v.  Seaton,  2  C.  M.  &  R.  728 ;  Hitchin  v.  Camp- 
bell, 2  W.  Bl.  827,  851 ;  Horford  ^).  Wilson,  1  Taunt.  12  ;  Parker  v.  Ansell, 
2  W.  Bl.  968;  Doe  dem.  Teynham  «.  Tyler,  6  Bing.  561;  Alexander  v. 
Clayton,  4  Burr.  2224 ;  Swinnerton  v.  Marquis  of  S.,  3  Taunt.  232 ;  Breok 
■D.  Middleton,  10  East,  268  ;  Sowell  v.  Champion,  2  N.  »t  P.  627:  Reg.  v. 
Green,  28  L.  T.  108. 


MAXIM  LI. 


Nemo  debet  esse  judex  in  proprid  causa  :  (12  Co.  113.) 
I^o  oue  ought  to  be  judge  in  his  own  cause. 

rr^IIE  rule  in  this  maxim  is  inflexible,  and  as  well  the  king  as 
JL  the  commoner  is  subjected  to  it ;  and  some  few  cases 
have  arisen  in  which  it  has  been  so  adjudged. 

The  manifest  injustice  of  a  man  being  judge  in  his  own 
cause  will  not  be  denied,  and  that  being  so,  it  may  be  supposed 
that  such  a  case  is  of  rare  occurrence,  and,  indeed,  so  it  is  ;  for 
it  is  only  indirectly  that  such  a  case  occurs ;  as,  for  instance, 
where  a  judge  interested,  as  shareholder  or  otherwise,  in  some 
railway  or  other  company  or  undertaking,  having  a  suit  before 
him,  proceeds  to  hear  the  cause  and  adjudicate.  To  such  a 
case,  namely,  that  in  which  he  has  an  interest  merely,  though 
he  be  not  a  party  to  the  suit,  the  rule  apj)lies. 

The  maxim  applies  to  all  judges  alike,  whether  superior  or 
inferior.  The  following  is  an  important  and  apt  instance : 
Where  a  company  filed  a  bill  against  a  landowner  and  obtained 
a  decree  in  their  favor,  which  was  sought  to  be  set  aside  on  ap- 
peal before  the  Lord  Chancellor,  who  was  a  shareholder  in  the 
company  ;  that  fact  being  unknown  to  the  defendant ;  and  the 
Lord  Chancellor  affirmed  the  decree  ;  the  House  of  Lords  re- 
versed the  decree  of  the  Lord  Chancellor  solely  on  the  princi- 
ple of  this  maxim.  And  it  w^as  there  stated  that  it  was  of  the 
greatest  im]3ortance  that  the  maxim,  "  'No  man  shall  be  judge 
in  his  own  cause,"  be  observed ;  and  that  the  rule  was  intended 
to  apply  not  merely  where  he  was  a  party,  but  where  he  had 
any  interest.  It  was  there  also  observed,  that  the  House  of 
Lords  had  again  and  again  set  aside  proceedings  of  inferior 
tribunals  because  an  individual  who  had  an  interest  in  the  cause 
took  part  in  the  decision ;  and  that  that  case  against  the  Lord 
Chancellor  would  be  a  good  example  and  a  lesson  to  all  inferior 


118  LEGAL    MAXIMS. 

tribunals  in  time  to  come,  not  only  that  in  their  decrees  they 
are  not  to  be  influenced  by  their  personal  interest,  but  that 
they  ought  to  avoid  the  appearance  even  of  being  influenced 
by  such  interest. 

Again,  where  by  a  building  contract  it  was  stipulated  that 
the  work  was  to  be  done  to  the  satisfaction  of  the  defendant 
himself ;  it  was  held  that  his  approval  of  tlie  work  done  was 
not  a  condition  precedent  to  payment,  for  that  would  make  him 
judge  in  his  own  cause.  So,  also,  a  justice  of  the  peace  inter- 
ested in  a  matter  brought  before  him  cannot  hear  it  or  adjudi- 
cate upon  it,  or  take  part  with  other  justices  in  so  doing ;  and 
objections  on  this  ground  are  of  daily  occurrence.  And  where, 
upon  an  appeal  by  a  water  company  against  an  assessment  to  a 
poor-rate,  the  presiding  judge,  the  deputy  recorder,  reduced  the 
rate  and  gave  costs  to  the  aj^pellants,  and  it  afterwards  ap- 
peared that  the  deputy  recorder  was,  at  the  time  of  the  trial  of 
the  appeal,  the  registered  shareholder  of  five  shares  in  the  com- 
pany, though  he  was  at  the  time  under  a  contract  to  dispose  of 
them,  and,  as  he  swore,  believed  he  had  no  beneficial  interest 
whatever  in  the  company ;  it  was  held  that  he  was,  notwitli- 
standing,  an  interested  party,  and  incompetent  to  try  the 
appeal. 

The  maxims,  "  Nemo  potest  esse  simul  actor  et  judex  " — 
Ko  one  can  be  at  the  same  time  judge  and  party ;  "  Aliquis 
non  debet  esse  judex  in  propria  causa,  quia  non  potest  esse 
judex  et  pars  " — No  man  ought  to  be  judge  in  his  own  cause, 
because  he  cannot  be  judge  and  party,  are  further  instances  of 
the  application  of  the  same  rule. 


Co.  Litt.  141  ;  4  Inst.  71 ;  Hob.  85  ;  2  Stra.  1173  ;  2  Roll.  Abr.  93  ; 
12  Co.  63, 113,  114;  Brooks  v.  Earl  Rivers,  Hardw.  503  ;  Reg.  v.  Aberdare 
C.  Co.,  14  Q.  B.  854;  Worsley  v.  South  D.  R.  C,  16  Q.  B.  539;  Reg.  v. 
Cheltenham  Com.,  1  Q.  B.  467 ;  Reg.  v.  Justices  of  SuflFolk,  18  Q.  B.  416; 
Reg.  V.  Great  Western  R.  Co.,  13  Q.  B.  327;  Dimes  v.  Grand  Junction  C. 
C,  3  H.  L.  Cas.  759;  Dallman  v.  King,  4  New  Cas.  106:  Reg.  v.  Storks, 
29  L.  T.  107. 


MAXIM  LII. 


Nemo  est  liceres  viventis :  (Co.  Litt.  8.) 
Xo  one  is  heir  of  the  living. 

THE  heir  is  one  who  takes  lands  of  inheritance  by  descent ; 
and  descent  in  law  is  the  transmission  of  the  right  and 
title  to  lands  to  the  heir  on  the  decease  of  the  proprietor,  by 
mere  operation  of  law.  The  law  of  descent  is  therefore  that 
law  by  which  the  inheritance  of  estates  is  regulated,  and  by 
which  provision  is  made  for  the  disposition  and  succession  of 
lands,  in  the  nature  of  freehold,  in  the  case  of  the  death  of  the 
proprietor  without  having  himself  made  any  previous  designa- 
tion of  heirs.  And  such  title  by  descent  or  operation  of  law  is 
distinguished  from  a  title  by  purchase,  inasmuch  as  the  latter 
may  be  said  to  be  a  title  by  devise  from  the  ancestor  or  by 
grant  from  the  purchaser. 

There  are  two  kinds  of  heirs  in  the  meaning  of  the  word  as 
now  under  consideration — the  one  being  heir  apparent,  and  the 
other  heir  presumptive.  Heir  apparent  is  he  who  will  neces- 
sarily succeed  to  the  real  estate  of  his  ancestor  undisposed  of  at 
the  time  of  his  death,  if  he  survives  him ;  as,  the  eldest  son  of  the 
ancestor  or  his  issue.  Heir  presumj^tive  is  he  who,  if  his  an- 
cestor should  die  immediately,  would,  under  existing  circum- 
stances, be  his  heir ;  but  whose  right  of  inheritance  may  be  de- 
feated by  some  nearer  heir  coming  into  existence ;  as,  a  brother 
or  nephew,  whose  presumptive  succession  may  be  destroyed  by 
the  birth  of  a  child. 

From  what  has  been  said,  it  will  be  seen,  that  a  man  cannot 
be  heir  to  his  ancestor ;  nor  can  he  be  both  heir  and  ancestor 
at  the  same  time.  But  the  meaning  of  the  maxim  is  more  par- 
ticularly with  reference  to  the  estate,  namely,  that  no  one  can  be 
entitled  as  heir  to  the  estate  of  his  ancestor  during  the  life  of 


120  LEGAL    MAXIMS. 

the  ancestor ;  for,  were  it  otherwise,  the  ancestor  would  cease 
to  be  such,  and  the  heir  would  take  his  place  as  ancestor. 

According  to  the  meaning  intended  to  be  conveyed  by  this 
maxim,  therefore,  it  is  said,  that  the  heir,  so  long  as  the  ancestor 
be  living,  has  no  estate,  nor  is  he  entitled  to  any  during  that 
period,  excepting  as  presumptive  and  apparent  heir ;  and  the 
following  cases  are  used  to  illustrate  this  : — If  an  estate  be 
granted  to  John  for  life,  and  afterwards  to  the  heirs  of  Eichard, 
the  inheritance  is  neither  granted  to  John  nor  Eichard,  nor  can 
it  vest  in  the  heirs  of  Eichard  till  his  death  ;  for,  according  to 
this  rule,  during  Eichard's  life  he  has  no  heir.  Or,  if  an  estate 
be  limited  to  A.  for  life,  remainder  to  the  heirs  of  B. ;  if  A.  die 
before  B.,  the  remainder  will  be  at  an  end ;  for,  during  B.'s  life 
he  has  no  heir. 

There  is  no  doubt,  however,  that  the  operation  of  this  rule 
may  be  excluded  by  express  words ;  as,  where  lands  were  devised 
to  the  heirs  of  J.  S.,  then  living ;  it  was  held  that  his  eldest  son 
should  have  them,  though,  in  strictness,  he  was  not  his  heir 
during  his  father's  life,  but  heir  apparent  only  ;  but  this  was  by 
reason  of  the  words  "  then  living,"  which  made  it  a  description 
of  the  person.  Again,  where  there  is  a  devise  to  A.  for  life, 
remainder  to  the  right  heirs  of  B.,  now  living,  the  remainder 
vests  in  the  heir  apparent  of  B. 

In  all  cases  of  devise,  the  intention  of  the  testator  will  of 
course  be  considered  in  the  application  of  the  rule  ;  and  he  who 
is  shown  upon  the  face  of  the  will  to  be  intended  to  take,  will 
take  accordingly,  whether  he  be  in  fact  heir  apparent  only,  or 
otherwise  ;  and  in  cases  of  doubt  the  heir  will  be  favored. 


Co.  Litt.  8,  22;  Prec.  Chan.  57;  Noy  Max.  185;  2  Bla.  Com.;  Jacob 
Die.  Heir;  1  Plowd.  170;  Fearne,  359;  Darbison  €.  Beaumont,  1  P.  Wms. 
229 ;  Jesson  v.  Wright,  2  Bligh,  1 ;  Doe  dem.  Winter  v.  Perratt,  7  Scott 
N.  R.  1;  Wrights.  Atkyns,  17Ves.  255;  James  v.  Richardson,  Raym.  330; 
Doe  dem.  Brooking  v.  White,  2  W.  Bl.  1010;  Egerton  v.  Earl  Erownlow, 
4  H.  L.  Cas.  103;  Sladen  t.  Sladen,  7  L.  T.  (N.  S.)  63;  Hennessey  v.  Bray, 
9  Jur.  (N.  S.)  IOCS  ;  Parker  r.  Nickson,  8  L.  T.  (N.  S.)  600. 


MAXIM  LIII. 


Nemo  patriam  in  qua  natiis  est  exuere  nee  ligeantice  debitum 
ejurare  possit :  (Co.  Litt.  129.) 

A  man  cannot  abjure  his  native  country,  nor  the  alle- 
giance he  owes  his  sovereign. 

UNDER  the  feudal  system  every  owner  of  lands  held  them 
of  some  superior  lord,  from  whom  or  from  whose  ances- 
tors he  had  received  them  ;  and  there  was  a  mutual  trust  sub- 
sisting between  them,  that  the  lord  should  protect  the  vassal  in 
the  enjoyment  of  the  lands,  and  that  the  vassal  should  be  faith- 
ful to  defend  the  lord  against  his  enemies.  This  obligation  was 
called  fealty,  and  an  oath  of  fealty,  similar  to  our  ancient  oath 
of  allegiance,  was  taken  from  the  vassal  to  the  lord ;  and  from 
this  has  arisen  what  is  now  called  allegiance.  And  it  being  a 
settled  principle  in  this  country  that  all  lands  are  considered  as 
being  held  of  the  sovereign  as  lord  paramount,  this  allegiance 
which^  was  once  due  and  given  to  the  lord  as  an  acknowledg- 
ment for  his  protection  of  the  vassal  in  the  enjojTnent  of  the 
land  held  of  him,  has  been  brought  to  signify  that  respect  and 
obedience  which  is  due  from  the  subject  to  the  sovereign  in  all 
engagements  whatsoever  necessary  for  the  welfare  of  the  coun- 
try, though  without  reference  to  any  actual  territorial  acquisi- 
tion. 

This  allegiance,  or  alleglantia,  or  ligameii  Jidei,  is  the  sworn 
allegiance  or  faith  and  obedience  which  every  subject  owes  to 
his  prince.  It  is  said  to  be  either  perpetual,  as  when  by  birth 
or  naturalization  ;  or  temporary,  by  reason  of  residence  within 
the  dominions  of  the  sovereign.  To  a  subject  born,  it  is  insep- 
arably incident  on  birth,  and  follows  him  whithersoever  he 
goes.  It  gives  to  him,  in  his  own  country  and  amongst  foreign 
nations,  many  privileges,  both  civil  and  criminal,  in  times  of 
peace  and  war,  which  are  denied  to  an  cdienus,  or  one  born  out 


122 


LEGAL    MAXIMS. 


of  the  allegiance  of  the  sovereign,  at  the  same  time  that  it 
binds  him  to  a  strict  observance  of  the  laws  of  his  country. 

The  rule  of  law  is  said  to  be  universal,  that  the  natural 
born  subject  of  one  prince  cannot,  by  any  act  of  his  own,  or 
by  any  authority  less  than  that  of  the  ruling  power  of  his  own 
country,  free  himself  from  his  natural  allegiance.  Nor  does 
the  swearing  allegiance  to  a  foreign  power  in  any  way  preju- 
dice the  right  of  the  prince  to  the  allegiance  due  from  a  natu- 
ral born  subject,  who  remains  liable  to  his  obligations  as  such, 
notwithstanding  that  by  his  connection  with  other  powers  he 
may  have  forfeited  his  natural  rights.  Allegiance  is  the  duty 
the  subject  owes  to  the  government  of  the  country  in  which 
he  was  born  for  the  protection  afforded  to  him  and  his  prop- 
erty by  that  government ;  and,  for  the  like  reason,  it  is  due 
from  foreigners  also  during  tlieir  temporary  sojourn  in  a  for- 
eign country.  Every  offense,  also,  affecting  the  sovereign  in 
his  royal  person,  crown,  or  dignity,  is  in  some  degree  a  breach 
of  tliis  allegiance ;  as,  for  instance,  treason. 

The  sovereign  is  entitled  to  the  allegiance  of  all  his  subjects, 
and  those  wlio  accept  any  office  or  employment  under  the 
crown  in  this  country,  are  required  to  take  the  oaths  of  alle- 
giance. 

Tlie  imjDortance  of  the  bond  of  allegiance  or  ligamen^  which 
binds  the  subject  to  his  native  country,  may  be  understood  by 
observing,  that  wherever  the  subject  goes  he  carries  with  him 
that  allegiance;  so  that,  were  he  to  take  possession  by  his 
power,  or  with  the  assistance  of  others,  of  some  foreign  terri- 
tory, his  possession  would  be  tliat  of  the  sovereign  of  his  na- 
tive country,  and  the  territory  would  be  that  of  his  country 
also ;  and  of  this  several  instances  are  on  record  in  the  history 
of  this  and  other  nations. 


1  Inst.  2,  329;  2  Inst.  741 ;  7  Co.  1,  5  ;  1,  2,  &  4  Bla.  Com. ;  Co.  Litt 
G5,  129;  Albretch  v.  Sussman,  2  Ves.  &  B.  323;  Fitch  v.  Weber,  12  Jur 
76;  Sutton  v.  Sutton,  1  Russ.  &  My.  663;  Barrick  v.  Biida,  16  C.  B.  493 
Craw  V.  Ramsay,  Vaugh.  R.  279 ;  Doe  v.  Jones,  5  T.  R.  1  ;  Doe  dem. 
Thomas  v.  Acklam,  4  D.  &  R.  304  ;  Rittson  v.  Stordy,  3  Smale  &  Giff.  230; 
Doe  dem.  Stansbury  v.  Arkwright,  5  Car.  &P.  575;  Barrow  t).  Wadkin,37 
L.  J.  129,  Ch. ;  Doe  dtm.  Auchmuty  v.  Mulcaster,  5  B.  &  C.  771. 


MAXIM  LIV. 


Nemo  tenetur  seipsum  accusare :  (Wing.  Max.  486.) 
iN'o  one  is  bound  to  criminate  himself. 

"I^TO  one  can  be  compelled  to  criminate  himself,  that  is,  to 
-*-^  accuse  or  confess  himself  guilty  of  any  crime ;  but  if  he 
do  so  voluntarily,  the  confession  is  admissible ;  and  this  is 
illustrated  by  the  common  case  of  a  magistrate  being  required 
to  caution  a  prisoner,  before  taking  from  him  any  admission  or 
confession  of  guilt  he  may  feel  desirous  of  making,  that  such 
confession  or  admission  will  be  used  in  evidence  against  him. 
So,  the  answer  of  a  prisoner,  after  his  arrest,  to  a  question 
asked  by  a  police  constable,  is  inadmissible  as  evidence  against 
him ;  for  the  officer  in  such  case  has  no  authority  to  ask  any 
question  tending  to  criminate  the  prisoner.  Also,  where,  on 
an  indictment  for  forgery,  it  appeared  that  the  prisoner,  on 
the  discovery  of  the  forgery,  being  suspected,  was  asked  to 
write  his  name  for  the  purpose  of  comparison,  and  did  so ;  it 
was  held  that  his  signature  was  not  admissible  on  the  part  of 
the  prosecution,  to  prove  tliat  tlie  instrument  forged  was  in  his 
handwriting. 

It  has  been  for  ages  a  principle  of  jurisprudence  in  this 
country,  that  no  man  shall  be  compelled  to  answer  upon  oath 
to  a  matter  by  which  he  may  accuse  himself  of  any  crime ; 
and,  strictly  speaking,  the  rule  holds  good  at  the  present  day. 
And  experience  has  shown  that  if  this  rule  did  not  exist, 
many  persons  would  be  found  willing,  for  reward  or  favor,  to 
accuse  themselves  of  crimes  of  which  they  had  never  been 
guilty. 

The  old  rule  in  this  respect  has,  however,  in  modern  times, 
been  somewhat  relaxed,  and  a  difference  has  been  made  be- 
tween private  crimes,  or  those  arising  out  of  commerce  or  the 


12i  LEGAL    MAXIMS. 

private  relations  of  society,  and  public  crimes,  or  those  relating 
strictly  to  the  general  welfare  of  the  State. 

As  the  law  stands,  there  is  one  branch  of  compulsory  evi- 
dence which  is  in  its  nature  civil,  and  another  criminal.  Thus, 
a  man  may  be  compelled  to  make  answer  to  a  bill  in  chancery, 
and  his  admissions  made  in  such  answer  may  be  given  in  evi- 
dence against  him  ;  so  may  also  the  evidence  given  by  a  wit- 
ness on  a  trial  in  a  civil  suit.  And  as  to  criminal  matters,  a 
man  may  be  compelled  to  make  answers  in  the  bankruptcy  and 
county  courts,  which  may  render  him  liable  to  criminal  pro- 
ceedings. 

By  various  statutes,  a  witness  cannot  refuse  to  answer  a 
question  relevant  to  the  issue,  on  the  ground  only  that  the  an- 
swer may  subject  him  to  a  civil  suit :  nor,  if  he  be  objected  to 
on  the  ground  that  the  verdict  would  be  admissible  in  evidence 
for  or  against  him  ;  but,  in  that  case,  the  verdict  shall  not  be 
admissible  for  or  against  him. 

So,  in  civil  proceedings,  husband  and  wdfe  are  competent 
and  compellable  to  give  evidence  for  and  against  each  other ; 
but  it  is  otherwise  with  them,  as  to  criminal  proceedings,  or 
proceedings  for  adultery.  Yet,  where  two  prisoners  were  tried 
for  a  joint  offense,  and  one  j)leaded  guilty,  and  it  was  ]3roposed 
to  call  the  wife  of  the  prisoner  who  had  pleaded  guilty,  on  the 
part  of  the  prosecution,  to  give  evidence  against  the  other 
prisoner ;  it  was  held  that  the  evidence  was  admissible. 

It  may  be  stated  broadly  that  no  person  can  be  com]3elled 
to  give  evidence  subjecting  him  to  criminal  proceedings,  ex- 
cepting those  of  the  quasi-criminal  nature  before  alluded  to. 

Questions  as  to  privileged  communications  may  be  consid- 
ered to  come  within  the  meaning  of  this  rule,  so  far  as  to  their 
being  in  the  nature  of  compulsory  evidence. 


Wing.  Max.  486  ;  Grant  v.  Jackson,  Peake,  203  ;  Robson  v.  Alexander, 
1  Moore  &  P.  448  ;  Millward  v.  Forbes,  4  Esp.  173;  Collett  v.  Lord  Keith, 
4  Esp.  213;  R.  v.  Merceron,  2  Stark.  366 ;  46  Geo.  3,  c.  37;  6  &  7  Vict.  c. 
98;  9  &  10  Vict.  c.  95;  14  &  15  Vict.  c.  99;  16  &  17  Vict.  c.  83;  Reg.  v. 
Bodkin,  9  Cox  Crim.  Cas.  403;  Ex  parte  Tear,  re  Tear,  10  L.  T.  (N.  S.)  878; 
Beg.v.  Aldridge,  3  F.  &F.  781;  Reg  v.  Thompson,  3  F.  &  F.  824;  Reg. 
V.  Mick,  3  F.  &  F.  823;  AVeutworth  r.  Lloyd,  10  L.  T.  (N.  S.)  767. 


MAXIM  LV. 


Nihil  tarn  conveniens  est  naturali  esqnitati  quam  iimun- 

quodque  dissolvi  eo  ligamine  quo  ligatum  est :  (2  Inst. 

359.) 
Nothing  is  so  agreeable  to  natural  equity  as  that,  by  the 

like  means  by  which  anything  is  bound,  it  may  be 

loosed. 

IT  is  said  that  there  is  no  inheritance  executory ;  as  rents, 
annuities,  conditions,  warranties,  covenants,  and  such  like ; 
but  may,  by  a  defeasance,  made  with  the  mutual  consent  of  all 
those  who  were  parties  to  the  creation  thereof,  be  annulled, 
discharged,  and  defeated.  And  so  as  to  recognizances,  obliga- 
tions, and  the  like ;  yet  so  as  in  all  such  cases  the  defeasance 
be  made  eodem  modo  as  the  obligation  ;  viz.,  if  the  one  be  by 
deed,  the  other  must  be  by  deed  also ;  for  it  is  a  rule  that  in 
all  cases  where  anything  executory  is  created  by  deed,  it  may, 
by  consent  of  all  persons  parties  to  the  creation  of  it,  be  by 
deed  defeated  and  annulled. 

In  accordance  with  this  rule,  it  is  laid  down  that  an  obliga- 
tion must  be  avoided  by  release ;  a  record  by  record  ;  a  deed 
by  deed  ;  a  jDarol  promise  by  j^arol ;  an  Act  of  Parliament  by 
an  Act  of  Parliament ;  every  agreement  or  obligation  being 
dissolved  only  by  a  like  high  agreement  or  obligation. 

By  the  common  law,  a  parol  waiver  is  no  discharge  of  a 
covenant :  as,  a  covenant  by  A.  not  to  carry  on  a  particular 
business  within  a  certain  distance  of  the  premises  of  D.,  cannot 
be  discharged  by  a  parol  permission  from  D.  to  A.,  authorizing 
him  to  carry  on  such  business.  And  where  by  deed  a  lessee 
covenanted  to  yield  up  all  erections  and  improvements  upon 
the  demised  premises  at  the  end  of  his  term,  it  was  held  that 
to  remove  a  greenhouse  he  had  subsequently  erected  thereupon 
was  a  breach  of  a  covenant,  notwithstanding  a  parol  permission 


12(3  LEGAL    MAXIMS. 

from  the  lessor  so  to  do,  made  prior  to  tlie  erection  of  the 
building.  So,  a  covenant  to  build  a  house,  or  to  perform  other 
like  engagements  within  a  limited  time,  is  not  discharged  by 
parol.  It  is  upon  this  principle  that  oral  evidence  is  inadmis- 
sible to  add  to,  alter,  or  vary  a  written  contract,  though  not 
under  seal ;  for,  where  there  is  no  ambiguity  in  the  words  of  a 
written  contract,  no  exposition  contrary  to  the  written  words 
will  be  received. 

Before  breach,  the  obligor  of  a  bond  for  payment  of  a  sum 
of  money  on  a  certain  day,  may  discharge  himself  by  showing 
payment  on  or  before  the  day  appointed,  and  acceptance  in 
satisfaction  by  the  plaintiff  of  a  smaller  for  a  larger  sum,  or  of 
some  other  thing,  as  a  horse  or  other  goods,  in  whole  or  in 
part  in  lieu  of  money.  After  breach,  anything  paid  in  satis- 
faction is  suflScient  to  be  pleaded  by  way  of  accord  and  satis- 
faction in  discharge  of  a  contract,  whether  simple  or  special,  or 
whether  the  remedy  adopted  be  by  action  of  covenant  on  deed, 
or  action  of  assumpsit  on  parol  agreement.  The  accord  must, 
however,  in  all  cases  be  executed — i.  e.,  there  must  be  an  ac- 
ceptance and  receij)t  by  the  party  entitled  or  claiming  to  be 
entitled  under  the  contract.  Prevention  of  performance  will 
also  operate  as  a  discharge  of  a  covenant ;  as,  if  a  man  cove- 
nant to  build  a  house  upon  the  land  of  another,  and  the  cove- 
nantee refuse  to  let  the  covenantor  enter  upon  the  land  to 
build,  in  that  case  performance  will  be  excused. 

Formerly  covenants  under  seal  could  not  be  discharged  by 
parol  before  breach,  whether  executed  or  executory ;  but  now, 
an  executed  jDarol  contract  made  in  discharge  of  a  covenant  may 
be  pleaded  m  equitable  defense  to  an  action  on  the  covenant. 

The  whole  principle  of  the  maxim  is  founded  upon  the 
question  of  consideration :  a  contract  requiring  a  consideration 
to  make  it,  requiring  also  a  consideration  to  break  it. 


2  Inst.  059  ;  Shepp.  Touch.  396  ;  2  Roll.  Rep.  39;  Litt.  s.  344;  Co.  Litt. 
213 ;  Pothier  Obi.  785 ;  6  Co.  43,  44  ;  Sellers  v.  Bickford,  1  Moore,  460  ; 
West  V.  Blakeway,  3  Sc.  N.  R.  199  ;  Spence  v.  Healey,  8  Exch.  688;  Cord- 
Avpnt  V.  Hunt,  8  Taunt.  596 ;  Lord  Petrie  r.  Stubbs,  25  L.  T.  81 ;  Gee  v. 
Smart,  26  L.  J.  305,  Q.  B. ;  Smith  v.  Ballams,  26  L.  J.  232,  Ex. ;  Foster  v. 
Dawbar,  G  Exch.  839  ;  17  &  18  Vict.  c.  125. 


MAXIM  LVI. 


Nimia  suMilitas  in  jure  reproMtur,  et  talis  certitudo  certitu- 

dinem  confundit :  (4  Co.  5.) 
Nice  and  subtle  distinctious  are  not  sanctioned  by  the 

law  ;  for  so,  apparent  certainty  would  be  made  to 

confound  true  and  legal  certainty. 

THIS  maxim  is  chiefly  applicable  to  pleadings,  to  avoid 
subtle  distinctions  and  nice  exceptions  in  which  the  law 
has  recently  undergone  so  many  changes ;  so  that,  with  the 
known  power  of  the  judges  to  amend,  subtleties  in  pleadings 
are  now  but  little  known.  The  maxim  is  not  opposed  to 
certainty  in  pleading,  or  to  proper  forms  of  pleading  to  induce 
certainty,  but  only  to  strained  and  caj^tious  pleadings  tending 
to  subvert  the  truth.  Strained  and  captious  constructions  of 
deeds  and  other  instruments  are  within  the  same  rules.  The 
maxim  under  consideration  is  so  well  known  in  modern  prac- 
tice, and  so  readily  consorts  with  the  notions  of  every  reason- 
able man  of  the  present  day,  that  it  will  not  be  necessary  to 
give  more  than  one  instance  in  illustration. 

By  the  common  law,  before  the  statute  27  Hen,  8,  a  free- 
hold estate  could  not  be  barred  by  acceptance  of  any  collateral 
recompense ;  but  by  that  statute,  where  lands  were  given  in 
jointure  for  an  estate  of  freehold  for  the  wife,  it  was  a  bar  to 
her  claim  to  dower  out  of  all  her  husband's  other  freehold 
estates ;  and  the  following  case  of  nimia  subtilitas  is  given  by 
Lord  Coke  as  occurring  under  that  state  of  the  law : — A  woman, 
on  the  death  of  her  husband,  wished  to  have  both  the  lands 
given  to  her  in  jointure  and  also  dower  out  of  her  husband's 
other  lands.  She,  therefore,  avoided  an  open  entry  into  the 
lands  in  jointure,  and  brought  her  writ  of  dower  to  be  endowed 
out  of  the  whole  of  her  husband's  lands,  including  those  in 
jointure,  and,  recovering,  the  sheriff,  not  knowing  of  the  de- 


128  LEGAL    MAXIMS. 

vice,  assigned  her  dower  of  the  whole,  out  of  that  part  only  of 
the  lands  which  were  not  in  jointure.  The  wife  then  openly 
entered  the  lands  in  jointure,  but  was  holden  out  by  the  terre- 
tenant.  The  wife  brought  trespass  against  the  terre-tenant, 
who  pleaded  the  feoffment  of  the  husband  to  him,  and  justified. 
The  plaintiff  replied  the  seizin  of  her  ancestor  prior  to  the 
seizin  of  the  husband,  and  the  gift  in  jointure  to  tlie  husband 
and  her.  The  defendant  rejoined  the  jointure,  and  that  after 
the  death  of  the  husband  and  before  the  trespass  the  wife 
brought  her  writ  of  dower  and  had  execution  id  supra,  and 
averred  that  the  said  land,  &c.,  was  parcel  of  the  land  con- 
veyed to  her  for  her  jointure,  and  no  part  of  the  land  assigned 
to  her  for  dower ;  to  which  the  plaintiff  surrejoined  the  entry 
of  the  wife,  after  the  death  of  her  husband  and  before  dower 
brought,  upon  the  land  in  question,  claiming  it  for  her  jointure. 
The  defendant,  by  surrebutter,  objected  that  the  wife  could 
not,  against  the  record  of  the  recovery  in  the  writ  of  dower, 
be  so  admitted  to  say ;  upon  which  the  plaintiff  demurred. 
And  it  was  argued  for  the  plaintiff  that  bringing  the  writ  of 
dower  was  no  waiver  of  the  estate  of  the  wife,  she  having  by 
entry  agreed  to  the  estate,  and,  being  actually  seized,  could 
not  afterwards  waive  and  divest  the  same  out  of  her  by  the 
w^rit  of  dower.  To  which  it  was  answered  that,  admitted  that 
the  wife  could  not  waive,  yet  she  might  bar  her  claim  to  the 
said  estate,  and  so  had  estopped  herself  from  claiming ;  for,  by 
her  writ  of  dower  and  judgment  for  a  third  of  the  whole,  she 
had  affirmed  her  title  to  dower,  and  so  no  estate.  Therefore, 
she  was  estopped  claiming  any  part  of  that  whereof  she  de- 
manded by  her  writ  to  be  endowed ;  and  so  it  was  held. 


5  Co.  5;  Wing.  Max.  19,  26;  Co.  Litt.  303;  5  Co.  Eccl.  L  8  ;  8  Co.  113 -, 
10  Co.  126  ;  Haraond  v.  Dod,  Cro.  Car.  6;  Harlow  v.  Wright,  Cro.  Car. 
105;  Bell  v.  Janson,  1  M.  &  S.  204 ;  Le  Bret  v.  Papillon,  4  East,  502;  Gal- 
loway V.  Jackson,  3  Scott  N.  R.  773 ;  Jones  v.  Chune,  1  B.  &  P.  363  ; 
Fraser  v.  Welsh,  8  M.  &  W.  634  ;  Evans  «.  Robins,  11  L.  T.  (N.  S.)  211 ; 
Hinnings  v.  Hinnings,  10  L.  T.  (N.  S.)  294. 


MAXIM  LVII. 


Non  jus,  sed  seisina,  facit  stipitem :  (Fleta,  G,  c.  14.) 
Not  right,  but  seizin,  makes  the  stock. 

SEIZIN  in  the  common  law  signifies  possession,  and  to  seize 
is  to  take  possession  of  a  thing ;  saidpritnier  seizin  is  the 
first  possession.  So  there  is  a  seizin  in  deed  and  a  seizin  in  law. 
A  seizin  in  deed  is  where  an  aetnal  possession  is  taken  ;  seizin 
in  law  is  where  lands  descend  and  entry  has  not  been  made 
upon  them.  Seizin  in  law  is  a  right  to  lands  though  the  owner 
is  by  wrong  disseized  of  them.  This  is  as  the  law  relating  to 
lands  was  formerly  understood  in  all  strictness ;  so  that  under 
it  no  person  could  be  an  ancestor,  so  as  that  an  inheritance  of 
lands  or  tenements  could  be  derived  from  him,  unless  he  had 
actual  seizin  thereof,  by  himseK  or  some  one  on  his  behalf  hold- 
ing under  him,  or  unless  there  was  some  other  equivalent  to 
such  actual  seizin,  according  to  the  nature  of  the  property, 
whether  corporeal  or  incorporeal,  land  or  rent;  and  which 
seizin  made  him  the  root  from  which  all  future  inheritance  by 
right  of  blood  must  be  derived,  distinguishing  this  actual  seizin 
or  entry  from  a  mere  right  of  entry :  and  this  is  what  is  meant 
by  seisina  facit  stipitem. 

This  seizin,  or  notoriety  of  ownership  by  occujDation  of  the 
land,  was  formerly  required,  owing  to  the  manner  in  which  land 
was  at  that  time  passed  from  one  person  to  another  ;  that  is,  by 
delivery  of  possession  and  actual  corporal  entry ;  and  until 
which  actual  corporal  entry  the  heir  or  purchaser  was  not  con- 
sidered to  have  such  a  complete  ownership  as  to  transmit  a  title 
thereof  to  his  heir,  or  to  one  purchasing  from  him.  So  no  per- 
son, as  the  law  then  stood,  could  succeed  to  an  inheritance  by 
descent  unless  his  ancestor  had  died  seized  thereof,  nor  was  the 
title  of  the  claimant  by  descent  perfect  until  he  had  himself 
obtained  actual  corporal  seizin,  so  as  in  like  manner  to  become 
9 


130  LEGAL     MAXIMS. 

in  his  turn  the  root  or  stock  from  which  all  future  inheritance 
by  right  of  blood  could  be  derived.  Since  the  statute  3  &  4 
Will.  4,  c.  106,  however,  such  actual  seizin  is  not  required,  ex- 
cept as  to  descents  which  took  place  previously  to  the  1st  Janua- 
ry, 1834 ;  and  the  heir  and  ancestor  are,  under  that  statute,  such 
as  otherwise  appears  by  law,  and  the  descent  is  so  traced. 

By  the  statute  referred  to,  the  person  who  last  acquired  the 
land  otherwise  than  by  descent,  or  than  by  escheat,  partition,  or 
inclosure ;  by  the  effect  of  which  the  land  should  have  become 
part  of,  or  descendible  in  the  same  manner  as,  other  land  ac- 
quired by  descent ;  is  to  be  considered  the  purchaser :  the  per- 
son entitled  by  descent,  he  who  has  title  to  inherit  by  reason  of 
consanguinity,  as  well  where  the  heir  shall  be  ancestor  or  col- 
lateral relative  as  where  he  shall  be  child  or  other  issue :  a  de- 
scendant, he  who  can  trace  his  descent  through  such  ancestor  ; 
and  the  person  having  the  actual  right  to  land  ;  whether  or  not 
he  was  in  possession  or  in  receipt  of  the  rents  and  profits  ;  is 
to  be  considered  the  person  last  entitled  and  the  purchaser,  and 
as  such  may  transmit  the  ownership  to  another  without  the 
formality  of  entry  by  himself,  his  heir,  or  devisee,  or  any  one 
claiming  through  him.  And  so  the  fiction  of  law  which  held 
an  estate  to  be  still  in  the  ancestor  which  had  long  since  de- 
scended to  his  heir,  and  an  estate  still  to  continue  in  a  previous 
owner  which  had  long  since  passed  from  him  by  sale  ;  merely 
because  the  heir  died  without  entry,  and  notwithstanding  proof 
of  heirship  by  descent ;  is  abolished,  and  the  more  reasonable 
law  substituted  which  allows  the  owner  and  heir  to  be  such  as 
they  can  be  shown  to  be  by  purchase  or  descent. 


Fleta,  lib.  6,  c.  14  ;  2  Bla.  Com. ;  Noy  Max.  9  ed.  p.  72 ;  1  Inst.  31 ; 
3  Co.  42;  Co.  Litt.  14,  15,  152;  Jenks'  Case,  Cro.  Car.  151;  Doe  dem. 
Andrews.  Hutton,  3  B.  «fc  P.  643;  Twcerlale  v.  Coventiy,  1  Bro.  Ch.  C. 
240;  Doe  dem.  Parker  v.  Thomas,  4  Scott  N.  R.  468  ;  Doe  dem.  Chillott  v. 
White,  1  East,  33 ;  3  &  4  "Will.  4,  c.  106 ;  Doe  dem.  Wallis  v.  Jackson, 
Cowp.  229 ;  Smith  v.  Coffin,  2  H.  Bl.  444 ;  Kellow  v.  Rowden,  3  Mod. 
253;  Smith  v.  Parker,  2  Bl.  1230. 


MAXIM  LVIII. 


Non  potest  adduci  exceptio  ejus  rei  mijus  petitur  dissolutio  : 
(Bac.  Max.  22.) 

It  is  not  permitted  to  adduce  a  plea  of  the  matter  in  is- 
sue as  a  bar  thereto. 

EE-ROE,  to  reverse  a  judgment  may  be  given  as  an  illustra- 
tion of  tills  maxim.  In  such  case  the  defendant  in  error 
cannot  plead  the  record  in  answer  to  the  error  alleged  by  the 
plaintiff,  that,  in  fact,  being  the  only  question  in  dispute ;  and 
if  he  could,  the  plaintiff  would  be  barred  of  all  remedy.  And 
so,  it  is  said,  that  it  would  be  impertinent  and  contrary  to  it- 
self for  the  law  to  allow  of  a  plea  in  bar  of  such  matter  as  is  to 
be  defeated  by  the  same  suit ;  for  if  that  were  the  case,  a  man 
could  never  arrive  at  the  end  and  effect  of  his  suit.  There- 
fore, where  a  writ  of  false  judgment  was  brouglit  upon  a  judg- 
ment of  nonsuit  in  one  of  the  inferior  courts,  on  the  ground 
that  the  judge  had  nonsuited  the  plaintiff  notwithstanding  he 
had  appeared  when  called  and  had  refused  to  be  nonsuited,  in- 
sisting that  the  case  should  go  to  the  jury,  and  had  tendered  a 
bill  of  exceptions ;  and  it  was  contended  on  the  part  of  the 
defendant  that,  as  the  bill  of  exceptions  was  appended  to  the 
nonsuit,  the  plaintiff  must  be  taken  not  to  have  appeared,  and 
therefore  could  not  be  heard  to  take  that  objection  :  the  court 
said  that  was  setting  up  as  a  defense  the  thing  itself  which 
was  the  subject  of  complaint,  a  course  which  was  prohibited 
by  the  maxim,  "Kon  potest  adduci  exceptio  ejus  rei  cujus 
petitur  dissolutio  ; "  and  so  it  was  held  :  and  also,  that  the  di- 
rection of  a  judge  nonsuiting  the  plaintiff  against  his  will  was 
the  subject  of  a  bill  of  exceptions,  and  fell  within  the  prin- 
ciple upon  which  that  remedy  had  been  provided  for  errors  in 
judgment  at  the  trial ;  being  all  misdirections  of  the  judge  in 


132  LEGAL    MAXIMS. 

the  course  of  a  trial,  or,  more  generally,  error  in  tlie  founda- 
tion, proceeding,  judgment,  or  execution  of  a  suit. 

Though  a  judgment  binds  the  parties  until  it  is  reversed^ 
yet  it  cannot  be  alleged  against  a  reversal  of  it ;  nor  can  it  be 
reversed  but  by  those  who  are  parties  to  the  record.  Before 
error  can  be  brought  upon  a  judgment,  the  judgment  must  be 
had,  and  it  must  be  final,  and  the  judgment  given  in  error  is, 
that  the  judgment  below  stand  or  be  amended. 

It  may  be  said  that  this  is  contrary  to  the  maxim,  "  Inter- 
est reipublicee  ut  sit  finis  litium  " — It  is  to  the  interest  of  the 
State  that  there  be  an  end  of  lawsuits  ;  for,  if  so  solemn  an  act 
as  a  judgment  is  not  to  be  depended  upon  as  an  end  to  litiga- 
tion, there  would  be  no  end  to  litigation  ;  and  so,  also,  may  it 
be  said  that  it  must  be  contrary  to  the  maxim,  "  Kemo  debet 
bis  vexari  pro  una  et  eadem  causa  " — IS^o  one  ought  to  be  twice 
punished  for  the  same  fault.  But  error  in  judgment  does  not 
come  within  either  of  these  rules ;  for  it  is  a  failure  of  justice, 
and  must  be  remedied  under  the  maxim,  "  De  fide  et  officio 
judicis  non  recipitur  qusestio :  sed  de  scientia  sive  error  sit 
juris  aut  facti." 

A  judgment  directly  in  point  is,  however,  conclusive  upon 
the  same  matter  between  the  same  parties,  and  such  judgment 
operates  as  an  estoppel  when  pleaded  to  an  action  for  the  same 
cause  ;  but  this  does  not  apply  to  a  judgment  in  which  there  is 
a  defect,  and  to  remedy  which  defect  error  is  brought,  for  such 
judgment  cannot  in  such  case  be  set  up  as  a  plea  in  bar  of  such 
writ  or  proceedings  in  error. 


Bac.  Max.  22 ;  Co.  Litt.  289  ;  3  Salk.  145 ;  Jenk.  Cent.  37 ;  2  Bac.  Abr. 
Error,  A,  2;  Samuel «.  Judin,  6  East,  333;  Masters  v.  Lewis,  1  Ld.  Raym. 
57;  Bishop  v.  Elliott,  11  Exch.  113;  Craig  «.  Levy,  1  Exch.  570;  Strother 
V.  Hutchinson  and  another,  4  Eing.  N.  C.  83;  Cossar  «.  Reed,  17  Q.  B. 
540 ;  Rex  v.  Westwood,  7  Bing.  83 ;  Byrne  v.  Manning,  2  Dowl.  (N.  S.)  403  ; 
Duchess  of  Kingston's  Case,  How.  St.  Tr.  538  ;  2  Smith,  L.  0. ;  Freeman  o. 
Cooke,  2  M.  &  W.  654. 


MAXIM  LIX. 


Noscitur  a  sociis :  (3  T.  E.  87.) 

The  meaning  of  a  word  may  be  ascertained  by  reference 
to  those  associated  with  it. 

THIS  maxim  applies  to  the  construction  to  be  put  upon  all 
written  instruments. 

It  is  one  of  the  many  maxims  serving  as  guides  in  the  in- 
terpretation of  written  instruments  used  by  the  judges  of 
former  times,  to  express  tersely  a  reason  for  their  opinions ; 
and  it  is  constantly  acted  upon  by  the  judges  in  the  present 
day  in  considering  and  determining  the  weight  to  be  attached 
to  general  words  with  reference  to  particular  words  associated 
therewith,  and  also  in  considering  and  determining  the  mean- 
ing of  ambiguous  terms  in  the  absence  of  apt  words  showing 
clearly  the  real  intention  of  the  parties.  It  is,  however,  sub- 
ject to  the  general  rule  of  interpretation  of  written  instru- 
ments as  to  intention,  and  is  used  with  particular  reference  to 
the  bearing  one  word  has  to  another,  and  to  the  connection  ex- 
isting between  one  word  and  another. 

The  following  case  will  most  readily  make  the  maxim  un- 
derstood : — C,  demised  to  E.  for  a  term  of  ninety-seven  years 
an  unfinished  messuage,  with  a  covenant  by  E.  to  deliver  up 
the  same  to  C.  at  the  end  of  the  term,  together  with  all  locks, 
keys,  bars,  bolts,  marble  and  other  chimney  pieces,  foot  paces, 
slabs  and  other  fixtures  and  articles  in  the  nature  of  fixtures, 
which  should  at  any  time  during  the  term  be  fixed  or  fastened 
to  the  premises.  E.  took  possession,  and  completed  the  mes- 
suage as  a  tavern,  and  for  that  purpose  put  in  certain  suitable 
trade  and  tenant's  fixtures.  B.  afterwards  contracted  with  E. 
for  an  underlease  of  the  premises,  and  the  good  will,  furniture, 
fixtures,  &c. ;  in  pursuance  of  which  contract  E.  executed  an 
underlease  to  B.  containing  a  covenant  on  the  part  of  B.  in 


134  LEGAL    MAXIMS. 

the  same  words  as  the  covenant  by  E.  to  C.  in  tlie  original 
lease.  In  an  action  by  E.  against  B.  for  the  vahie  of  the  ten- 
ant's and  trade  fixtures,  it  was  held,  on  error,  upon  the  prin- 
ciple of  this  maxim,  that  the  covenant  above  set  forth  did  not 
restrain  B.  from  disposing  of  either  the  tenant's  or  trade  fix- 
tures ;  but  that  the  general  words  which  followed  the  particu- 
lar words  ought  to  be  limited  to  fixtures  of  the  like  kind,  and 
not  to  be  extended  so  as  to  include  the  trade  or  tenant's  fix- 
tures. 

The  rule  of  law  in  the  construction  of  wills  is,  that  the 
word  "  survivors  "  is  to  be  confined  to  its  literal  signification 
of  survivors  at  the  period  spoken  of  by  the  testator,  in  every 
case  where  it  is  possible  so  to  be  without  violating  the  clear 
meaning  of  the  rest  of  the  will.  But,  where  the  gift  over 
and  subsequent  part  of  the  will  referred  to  the  "  issue  "  of  a 
deceased  niece  participating  in  an  accruing  share,  the  word 
"  survivors  "  of  nieces  was  construed  "  others."  Again,  where 
a  foreigner  bequeathed  his  residuary  personal  estate  to  the 
hospitals  of  Paris  and  "  London,"  in  other  parts  of  his  will 
showing  that  by  term  "  London  "  he  did  not  mean  the  city  of 
London  properly  so  called  ;  it  was  held  that  London,  as  used 
by  the  testator,  must  be  held  to  comprise  all  the  houses  which 
stand  in  a  continuous  line  of  streets  within  the  cities  of  Lon- 
don and  Westminster  and  the  borough  of  South wark,  together 
with  the  houses  contiguous  thereto.  So,  the  word  ''  vested," 
used  in  a  gift  over,  must  be  construed  as  being  intended  to 
mean  vested  in  interest,  and  not  as  meaning  vested  in  posses- 
sion, unless  the  rest  of  the  will  and  the  context  require  that 
it  should  receive  the  latter  construction. 

The  maxim,  "  Ex  antecedentibus  et  consequentibus  fit  op- 
tima interpretatio  "  may  be  appropriately  considered  with  this. 


3  T.  R.  87 ;  King  «.  Melling,  1  Vent.  325 ;  Evans  v.  Astley,  3  Burr. 
1570;  Bacon  W.  Bl.  4,  p.  26;  Hay  v.  Coventry,  3  T.  R.  87;  Clift  ?j. 
Schwabe,  3  C.  B.  437;  Hardy  v.  Tingey,  5  Exch.  294;  Bishop  v.  Elliott, 
11  Exch.  113;  Borrodaile  v.  Hunter,  5  M.  &  Gr.  639;  Knight  v.  Selby,  3 
Scott  N.  R.  409  ;  Grey  v.  Friar,  4  H.  L.  Cas.  580,  et  seq. ;  Be  Keap,  33 
Beav.  123;  Wallace  t).  Attorney  General,  10  L.  T.  (N.  S.)  51;  Re  Arnold^ 
9  L.  T.  (N.  S.)  530. 


MAXIM  LX. 


Nova  consiitiitio  futuris  formam  imponere  debet,  non  prcB- 

teritis :  (2  Inst.  292.) 
A  new  law  ought  to  impose  form  on  what  is  to  follow, 

not  on  the  past. 

LAW  is  called  a  rule  prescribed ;  which  word  prescribed 
has,  in  the  sense  in  which  it  is  here  used,  two  significa- 
tions :  one,  that  the  law  is  intended  to  provide  for  something 
thereby  directed  to  be  done,  or  not  to  be  done ;  and  the  other, 
that  such  law  should  be  written  or  printed,  or  otherwise  pub- 
licly notified  previously  to  its  intended  operation,  in  order  that 
those  persons  who  are  thereby  called  upon  or  bound  to  obey 
may  be  properly  informed  of  their  duties  and  responsibilities, 
and  so  that  they  may,  as  it  is  their  duty  to  be,  thoroughly  ac- 
quainted therewith.  Were  the  laws  otherwise  promulgated, 
it  would  be  unjust  to  say,  "Ignorantia  juris  non  excusat." 
Laws,  therefore,  which  are  not  so  made  are  made  in  contra- 
vention of  this  maxim,  and  are  called  ex  post  facto,  or,  retro- 
spective laws. 

The  meaning  of  the  maxim  is,  that  laws  ought  not  to  be 
retrospective  in  their  operation,  nor  to  apply  to  past  transac- 
tions ;  but  should  be  made  to  take  effect  from  the  time  of  their 
being  enacted,  and  apply  to  future  transactions  only ;  and  this 
is  the  construction  which  is  always  put  upon  statutes  of  the 
present  day,  in  the  absence  of  any  manifest  intention  to  the 
contrary  expressed  upon  the  face  of  the  statute. 

A  simple  application  of  this  rule  of  law  is,  that  an  action 
or  other  legal  proceeding  commenced  before  the  passing  of  an 
Act,  in  respect  of  a  right  of  action  accrued  before  the  com- 
mencement of  the  Act,  proceeds  as  before,  notwithstanding 
that  by  the  Act  subsequently  passed  the  right  of  action  in  sim- 
ilar cases  be  taken  away,  or  that  the  proceedings  in  respect 


136  LEGAL    MAXIMS. 

thereof  be  changed.  Some  cases  would  seem  to  show  an  ex- 
ception to  this  rule  ;  but  there  is  in  strictness  no  exception,  the 
statutes  under  which  those  apparently  excepted  cases  were  de- 
cided, strictly  considered,  bearing  the  retrospective  construc- 
tion put  upon  them  in  the  particular  cases. 

Where  the  question  to  be  considered  was  as  to  whether  or 
not  s.  14  of  the  19  &  20  Yict.  c.  97 ;  which  enacts  that  the 
payment  of  principal  or  interest  by  one  of  several  joint  con- 
tractors, &c.,  shall  not  prevent  the  operation  of  the  statute  of 
limitations ;  was  retrospective,  the  above  maxim  was  consid- 
ered and  adopted  by  the  court  as  one  of  obvious  convenience 
and  justice,  and  always  to  be  adhered  to  in  the  construction  of 
statutes ;  and  the  statute  referred  to  in  the  matter  then  under 
consideration  was  held  not  to  be  retrospective,  there  not  being 
either  any  express  clause  or  any  manifest  intention  upon  the 
face  of  it  that  it  should  so  be.  For,  though  the  statute  had 
not  contained  any  express  retrospective  clause,  yet,  had  it  con- 
tained such  manifest  retrospective  intention,"  that  intention 
would  have  prevailed  under  the  ordinary  rule  for  the  construc- 
tion of  statutes. 

It  has  been  stated  in  another  case  that  the  exception  to  the 
general  rule  that  a  statute  is  not  to  have  a  retrospective  opera- 
tion, especially  so  as  to  affect  a  vested  right,  must  depend 
upon  the  words  of  the  statute  or  the  special  nature  of  each 
case.  And,  again,  the  rule  that  statutes  ought  not  to  be  con- 
strued retrospectively,  unless  an  intention  in  the  Legislature 
that  they  should  be  so  construed  distinctly  appears,  has  been 
held  not  to  apply  to  statutes  which  only  affect  the  procedure 
or  practice  of  the  courts. 

The  Roman  law  was,  however,  more  strict  than  ours  in  this 
respect,  for  it  did  not  in  any  case  admit  of  a  law  being  retro- 
spective in  its  operation  unless  so  expressly  stated. 


2  Inst.  293;  1  Bla.  Com.;  Chappell  v.  Piirday,  12  M.  &W.  303;  Moon 
V.  Durdeu,  2  Exch.  22 ;  Lallas  v.  Holmes,  4  T.  R.  660  ;  Gilmore  v.  Sbuter, 
Jones  Rep.  108;  Towler  r.  Chatterton,  6  Bing.  258;  Jackson  y.  Woolley, 
31  L.  T.  342 ;  Vansittart  v.  Taylor,  4  E.  &  B.  910 ;  Whittaker  v.  Wisby, 
12  C.  B.  52;  Pinkorn  v.  Souster,  8  Exch.  138;  Edmonds  v.  Lawley,  6  M. 
&  W.  285:  The  Ironsides,  31  L.  T.  129;  Wright  ».  Hale,  30  L.  J.  40,  Ex. 


MAXIM   LXI. 


Nullum  tempus,  aut  locus,  occurrit  regi :  (2  Inst.  273.) 
No  time  runs  against,  or  place  affects,  tlie  liing. 

BY  a  council  at  Lateran,  the  Pope  endeavored  to  take  from 
princes  and  lay  patrons,  the  right  of  presentation  to  a 
benefice  by  lapse,  saying  that  the  presentation  was  spiritual, 
whereas  the  common  law  of  England  says  it  is  temporal,  and 
it  has  been  so  declared  by  many  Acts  of  Parliament ;  the  law 
being,  that  it  is  the  right  of  the  diocesan  to  present  after  six 
months'  lapse  by  the  patron,  if  the  patron  do  not  in  the  mean- 
time, though  after  the  six  months,  present,  in  which  case  the 
diocesan  ought  to  receive  the  clerk  presented ;  and  after  de- 
fault of  the  diocesan,  then  of  the  metropolitan ;  and  in  default 
of  him,  the  crown  ;  but  when  the  king's  turn  comes  to  present, 
Jrire  coronce,  by  lapse,  the  law  is,  "  I^uUum  tempus  occurrit 
regi  ex  consuetudine  hactenus  obtent'  in  regno  Anglise  " — I^o 
time  runs  against  the  king  according  to  the  custom  of  England ; 
for  the  king  being  supre'inus  Dominus,  does  not  lose  his  right 
at  all  by  lapse.  And,  upon  the  same  principle,  there  can  be  no 
lapse  when  the  original  presentation  is  in  the  crown.-  But  the 
right  acquired  by  the  crown  by  lapse  is  only  to  the  next  pre- 
sentation ;  and  if  the  crown  neglect  to  present,  and  the  patron 
present,  and  his  clerk  die  incumbent,  the  crown  loses  the  right 
to  present  which  it  had  gained  by  lapse. 

This  maxim  implies  that  there  can  be  no  laches  on  the  part 
of  the  king,  and  that  therefore  no  delay  will  bar  his  right ;  the 
law  understanding,  that  the  king  is  always  busied  about  public 
affairs  and  for  the  public  good,  and  has  not  time  to  assert  his 
right  within  the  time  limited  for  that  purpose  to  his  subjects. 

Several  statutes  have,  however,  from  time  to  time  made 
inroads,  for  the  public  welfare,  into  this  royal  prerogative.  By 
statute,  the  crown  is  not  to  sue  for  lands,  tenements,  rents, 


138  LEGAL    MAXIMS. 

&c.,  other  than  liberties  and  franchises,  where  tlie  parties  have 
been  in  possession  sixty  years  before  the  commencement  of  the 
suit ;  nor  to  sue  after  sixty  years  for  any  lands,  tenements, 
rents,  &c.,  by  reason  of  any  such  lands,  &c.,  having  been  in 
charge  to  the  crown ;  nor,  after  adverse  possession  of  lands  for 
twenty  years,  save  by  information  of  intrusion. 

To  criminal  prosecutions  at  common  law,  at  the  suit  of  the 
crown,  there  is  no  limitation ;  but,  by  statute  law,  proceedings 
for  many  minor  offenses  are  required  to  be  taken  within  a 
limited  period. 

The  maxim  under  consideration  does  not  apply  to  lands^ 
&c.,  purchased  by  the  sovereign  out  of  the  privy  purse. 

As  to  the  latter  part  of  the  maxim,  that  no  place  affects  the 
king :  it  is  said,  in  a  recent  case,  to  be  a  matter  of  universal 
law,  that  on  the  death  of  the  last  owner  without  heirs,  his  real 
property  escheats  to  the  ci'own  as  supreme  lord  ;  and  that  there 
is  nothing  in  the  Hindoo  law  to  prevent  the  application  of  this 
rule  to  the  property  of  a  deceased  Brahmin.  It  has,  however, 
also  been  held  that,  though  it  is  a  prerogative  of  the  crown  to 
present  to  a  benefice  in  England  which  becomes  vacant  by  the 
promotion  of  the  incumbent  to  a  bishopric  in  England ;  yet, 
the  crown  has  no  prerogative  right  to  present  to  a  benefice  in 
England  becoming  vacant  by  the  promotion  of  the  incumbent 
to  a  colonial  bishopric  within  the  queen's  dominions,  which  has 
been  erected  and  constituted  solely  by  tlie  exercise  of  the  pre- 
rogative of  the  crown. 


2  Inst.  272;  Cro.  Car.  855;  Fiucli,  1.  83 ;  6  Co.  50;  Co.  Litt.  00;  3 
Camp.  227;  Hob.  347 ;  Griffith  ®.  Baldwin,  11  East,  488;  Attorney  Gen- 
eral V.  Parsons,  2  M.  &  W.  23  ;  Doe  dem.  Watt  v.  Morris,  2  Bing.  N.  C. 
187;  21  Jac.  1,  c.  2;  7  Will.  3,  c.  3;  9  Geo.  3,  c.  16;  32  Geo.  3,  c.  58;  24 
&  25  Vict.  c.  62;  Lambert  c.  Taylor,  4  B.  &  C.  151 ;  Kerr  Bla:  241 ;  Mas- 
ulipatam  r.  Narainapah,  3  L.  T.  (N.  S.)  221 ;  Reg.  v.  Eton  College,  30  L. 
T.  186. 


MAXIM  LXII. 


Nullus  commodiim  capere  potest  de  injurid  sxid  prox)rid: 

(Co.  Litt.  148.) 
No  one  can  take  advantage  of  his  own  wrong. 

THE  maxim  under  consideration  applies  generally,  and  may 
be  applied  particularly  to  the  case  of  contracts.  Tims, 
where  a  man  hinds  another  to  an  impossible  condition,  or  to 
the  performance  of  some  particular  act,  and  at  the  same  time 
does  something  whereby  the  performance  of  such  act  is  pre- 
vented ;  as,  where  A.  contracts  with  B.  to  build  a  house  within 
a  certain  time,  under  a  penalty,  B.  finding  materials,  and  B., 
by  delay  in  providing  the  materials,  prevents  the  due  comple- 
tion of  the  house ;  he  shall  not  in  such  case  be  allowed  to  suc- 
ceed in  an  action  for  the  penalty. 

If  the  obligee  of  a  bond  have  prevented  the  obligor  from 
fulfilling  the  condition  of  the  bond,  he  shall  not  take  advan- 
tage of  the  non-performance  of  the  condition ;  for  that  would 
be  enabling  him  to  benefit  by  his  own  wrong.  So,  if  the  con- 
dition of  a  bond  be  to  build  or  repair  a  house,  and  the  obligee, 
or  some  one  by  his  direction  or  at  his  instigation,  prevent  the 
obligor  from  coming  upon  the  land  to  build  or  repair  it ;  or  if 
the  obligee  positively  refuse  to  have  the  house  built  or  re- 
paired, and  interrupt  the  building  or  repairing  of  it ;  perform- 
ance of  the  condition  will  in  such  cases  be  excused,  and  the 
obligation  thereby  discharged. 

So,  on  a  building  contract,  which  provides  that  the  builder 
shall  rot  be  paid  but  upon  the  certificate  of  the  architect  em- 
ployed by  the  owner ;  the  owner  in  this  case  shall  not  have  it 
in  his  power  to  delay  payment  by  causing  the  certificate  of  the 
architect  to  be  withheld,  but  the  builder  shall  be  entitled  to  re- 
cover upon  other  evidence  of  the  work  done  in  respect  of 
which  payment  is  sought. 


140  LEGAL    MAXIMS. 

And,  in  general,  to  all  those  cases  of  fraudulent  representa- 
tions between  debtor  and  creditor,  where  one  creditor  seeks  to 
obtain  an  advantage  to  himself  at  the  expense  of  the  others,  by 
fraudulent  conveyance  or  transfer  of  the  debtor's  goods,  &c., 
the  maxim  applies.  Nor  will  a  court  of  equity  decree  specific 
performance  of  a  contract  in  favor  of  a  man  who  has  been 
guilty  of  unreasonable  delay  in  fulfilling  his  part  of  the  agree- 
ment, and  who  at  length,  when  circumstances  have  changed  in 
his  favor,  comes  forward  to  enforce  a  stale  demand.  Nor  where 
the  party  seeking  relief  has  been  guilty  of  fraud,  misrepresen- 
tation, or  deceit. 

Again,  where,  upon  a  sale  of  real  estate  in  lee  by  assignees 
of  a  bankrupt,  the  bankrupt  and  his  wife  were  parties  to  the 
conveyance,  which  recited  that  they  were  so  for  the  purpose 
thereinafter  mentioned ;  the  operative  part  stating  that  the 
deed  was  to  be  acknowledged  by  the  wife  under  the  Fines  and 
Recoveries  Act,  and  the  deed  was  executed  and  acknowledged 
by  the  wife,  but  she  was  not  a  conveying  party ;  the  wife  sur- 
viving the  husband  and  claiming  dower,  it  was  held  that  the 
claim  was  barred. 

Champerty  is  within  the  meaning  of  this  maxim.  As, 
where  one  agrees  to  furnish  money  to  carry  on  a  lawsuit  with 
a  view  to  profit,  having  no  personal  interest  in  the  matter  in 
dispute,  he  will  not  be  entitled  to  recover  the  amount  of  his 
advances  upon  any  security  he  may  have  taken  for  payment. 
For  this  reason  it  was  that  choses  in  action  were  not  assignable 
at  law. 

To  the  same  effect  are  the  maxims  following: — ''Nul 
prendra  avantage  de  son  tort  demesne ; "  "  Nemo  ex  dolo  suo 
proprio  relevetur,  aut  auxilium  capiat ; "  "  Nemo  ex  suo  delicto 
meliorem  suam  conditionem  facere  potest." 


2  Inst.  564,  713;  Jenk.  Cent.  4;  D.  50,  17,  134;  Plowd.  88  ;  Co.  Litt. 
148,  265;  1  Roll.  Abr.  453,  Condition  N;  Brown  v.  Mayor  of  London,  3 
L.  J.  225,  C.  P. ;  Harrington  v.  Long,  2  "!\Iyl.  &  K.  590;  Hayward  v.  Ben- 
nett, 3  C.  B.  423 ;  Lloyd  v.  Collett,  4  Bro.  C.  C.  469 ;  Jones  v.  Barclay,  2 
Doug.  694;  Cadman  v.  Horner,  18  Ves.  10  ;  Malins  v.  Freeman,  2  Kee.  25; 
Holme  V.  Guppy,  3  M.  &  W.  389 ;  Dent  v.  Clayton,  10  L.  T.  (N.  S.)  865. 


MAXIM  LXIII. 


Omne  majus  continet  in  se  minus :  (5  Co.  115.) 
The  greater  contains  the  less. 

IT  is  said  tliat  Henry  III.  sought  to  avoid  Magna  Charta, 
granted  hy  his  father  King  John,  and  afterwards  confirmed 
by  him,  Henry  III.,  in  the  nintli  year  of  his  reign,  because,  as 
he  alleged,  John  granted  it  under  duress,  and  that  he  himself 
was  within  age  when  he  confirmed  it,  and,  for  which  reason  it 
was  again  confirmed  in  the  twentieth  year  of  his  reign  and 
twenty-ninth  of  his  age  ;  but  that,  nevertheless,  in  law,  the 
confirmation  in  the  ninth  year  of  Plenry  III.  was  valid,  not- 
withstanding his  non-age.  For  the  king,  as  king,  cannot  be 
said  to  be  a  minor :  for,  when  the  royal  body  politic  of  the 
king  meets  with  the  natural  capacity  in  one  person,  the  whole 
body  shall  have  one  quality  of  royal  body  politic,  which  is  the 
greater  and  more  worthy  ;  and  wherein  is  no  minority  ;  for, 
"  Omne  majus  trahit  ad  se  quod  est  minus  ; "  and,  "  Omne 
majus  dignum  continet  in  se  minus  dignum." 

Again,  plaintiff  and  H.  agreed  in  writing  to  run  a  match 
between  two  horses  on  a  specified  day,  with  a  specified  person 
as  judge,  and  a  specified  person  as  starter.  Plaintiff  and  II. 
had  each  deposited  a  stake  in  the  hands  of  the  defendant,  the 
whole  to  be  paid  to  the  winner ;  and  the  agreement  made  the 
money  to  be  given  up  on  the  decision  of  the  judge.  On  the 
day  fixed,  plaintiff  and  H.  were  present,  but  the  starter  did 
not  appear,  and  therefore  H.  refused  to  run.  The  judge  over- 
ruled the  objection,  and  H.  still  refusing  and  plaintiff's  horse 
having  been  trotted  over  the  course,  the  judge  declared  him 
the  winner.  Plaintiff  demanded  the  stakes  from  defendant, 
who  refused  to  hand  them  over.  In  an  action  to  recover  from 
defendant  the  w^hole  of  the  stakes,  it  was  held  that  as  the  race 
was  not  mn  upon  the  terms  agreed  upon,  plaintiff  and  H.  were 


142  LEGAL     MAXIMS. 

each  entitled  to  recover  back  his  share  from  defendant,  as 
money  had  and  received  ;  and  that  as  plaintiff  had  made  a 
demand  before  action  of  the  larger  sum,  that  was  a  demand  of 
the  less. 

If  a  man  tender  more  money  than  he  owes,  it  is  a  good 
tender  under  this  rule,  if  the  money  be  in  specie,  so  that  the 
creditor  can  take  what  is  due  to  him.  But,  if  a  bank  note  for 
more  than  is  due  be  tendered,  requiring  change,  it  is  otherwise. 
But  in  such  case,  if  no  objection  be  made  on  the  ground  of 
change,  the  tender  will  be  good.  If  enough  of  money  has  been 
tendered,  more  being  required,  the  tender  is  good  even  though 
made  in  banker's  checks  or  provincial  bank  notes. 

The  owner  of  the  fee  simple  in  land  can  grant  out  any  less 
estate  ;  a  lessor  for  years  a  sub-lease,  and  so  on.  So  a  term  of 
years  becomes  merged  in  the  freehold  by  the  lessee  becoming 
entitled  to  the  fee.  Personalty  is  considered  less  worthy  than 
realty,  and  to  arise  out  of  it,  and  merge  into  it,  but  not  realty 
out  of  or  into  personalty.  A  simple  contract  debt  is  less 
worthy  tlian  a  specialty  debt,  and  a  specialty  debt  is  less 
worthy  than  a  judgment,  into  which  it  will  merge  upon  judg- 
ment recovered  in  respect  of  it. 

The  accessory  follows  its  principal,  but  the  accessory  cannot 
lead,  nor  can  it  exist  without  the  principal ;  it  is  contained 
within  it.  A  release  of  the  principal  is  a  release  of  the  acces- 
sory. The  incident  passes  by  a  gra^t  of  the  principal,  et  sic  in 
similihus. 


5  Co.  115;  NoyMax.  25;  Jenk.  Cent.  208;  Co.  Litt.  355;  Johnstone 
V.  Sutton,  1  T.  R.  519;  Douglas  v.  Patrick,  3  T.  R.  683;  Betterbee  v. 
Davies,  3  Camp.  70;  Blow  r.  Russell,  1  C.  &  P.  365 ;  Rivers  v.  Griffith,  5 
B.  &  Aid.  630 ;  Harding  i\  Pollock,  6  Bing.  63  ;  Polglass  v.  Oliver,  2  Cr. 
&  J.  15 ;  Jones  v.  Arthur,  8  Dowl.  P.  C.  442 ;  Dean  v.  James,  4  B.  &  Ad. 
546 ;  Beavans  v.  Rees,  5  M.  &  W.  308 ;  Cadmian  v.  Lubbock,  5  D.  &  R.  289 ; 
Carr  v.  Martinson,  1  E.  &  E.  45G. 


MAXIM  LXIV. 


Omnia   prcBsumuntur  contra  spoliatorem :    (Branch.  Max. 

80.) 
All  things  are  presumed  against  a  wrong-doer. 

THE  leading  case  upon  this  subject  is  Armory  v.  Delamirie, 
which  arose  out  of  a  chimney  sweep  boy  having  found  a 
jewel  set  in  a  socket,  which  he  took  to  a  goldsmith's  to  know 
its  value.  He  gave  it  to  the  goldsmith's  apprentice  for  that 
purpose,  but  the  apprentice,  under  pretense  of  weighing  it, 
took  out  the  stone  and  offered  the  boy  three  half-pence  for  it, 
which  the  boy  refused,  insisting  upon  having  the  jewel  back. 
The  apprentice,  however,  gave  him  back  the  socket  only,  with- 
out the  stone,  and  the  boy  brought  an  action  against  the  master 
for  conversion  of  the  jewel.  It  was  held  that  the  boy  was  en- 
titled to  recover  for  the  conversion,  and  the  jewel  not  being  pro- 
duced, the  jury  were  directed  that,  unless  the  defendant  pro- 
duced the  jewel,  they  should  presume  the  strongest  against 
him,  and  make  the  value  of  the  best  jewel  the  measure  of  their 
damages. 

When  property  has  been  wrongfully  converted,  if  the  value 
is  doubtful,  every  presumption  is  raised  against  the  wrong-doer. 
So,  where  a  diamond  necklace,  worth  500^.,  had  been  stolen, 
and  a  portion  of  the  diamonds  came  into  the  defendant's  pos- 
session shortly  after  the  robbery,  and  the  latter  gave  unsatisfac- 
tory accounts  as  to  the  mode  in  which  he  became  possessed  of 
them,  and  the  owner  sued  and  recovered  a  verdict  for  the  full 
amount  of  the  necklace  ;  it  was  held  that  the  jury  were  justi- 
fied in  finding  that  the  whole  necklace  came  into  the  hands  of 
the  defendant.  In  trover,  the  value  of  the  goods  converted  is 
not  limited  to  their  value  at  the  time  of  conversion,  but  the 
jury  may  give  the  value  at  any  subsequent  time  according  to 
the  opportunity  the  plaintiff  might  have  had  of  selling  them  to 


144  LEGAL    MAXIMS. 

advantage  had  they  not  been  so  detained.  So  may  a  plaintiff 
recover  from  a  defendant  not  only  the  value  of  the  goods  wrong- 
fully converted,  but  all  such  damages  as  he  may  have  sustained 
from  their  wrongful  seizure  to  the  commencement  of  the  suit. 

Where  a  cable  was  sold  with  a  warranty,  and  the  plaintiff, 
relying  upon  the  warranty,  attached  to  it  a  new  anchor,  and  the 
cable,  not  answering  the  warranty,  broke,  and  it  and  the  anchor 
were  lost,  the  plaintiff  was  held  entitled  to  recover  the  value  of 
both  cable  and  anchor.  So  where  the  defendant  covenanted 
that  if  the  plaintiff  would  surrender  his  lease  in  order  that  a 
new  one  might  be  granted  to  tlie  defendant,  he  would  sink  a 
pit  on  the  land  in  search  of  coal,  and,  in  case  a  marketable  vein 
of  coal  should  be  found,  would  pay  the  plaintiff  2,500^.,  but  the 
pit  was  never  sunk ;  the  plaintiff  having  sued  defendant  for 
breach  of  the  covenant,  and  it  being  shown  that  marketable 
coal  would  probably  have  been  found  had  the  pit  been  sunk,  it 
was  held  that  the  whole  2,500(5.  was  recoverable. 

This  presumption  is  frequently  applied  to  the  law  of  evi- 
dence ;  as,  where  an  apparently  necessary  witness  is  kept  back, 
it  will  be  presumed,  that  if  produced,  his  evidence  would  be 
unfavorable  to  the  party  having  the  power  to  produce  him. 
But  this  rule  it  is  said  should  not  be  adopted  in  cases  of  privi- 
leged communications  ;  as,  where  at  the  trial  a  party's  solicitor 
was  called  as  a  witness,  and  it  was  objected  that  the  communi- 
cation proposed  to  be  made  was  professional  and  privileged, 
and  so  the  evidence  was  not  received,  the  court  or  jury  has  no 
right  to  treat  this  as  though  the  party  had  kept  back  a  mate- 
rial witness,  and  draw  an  unfavorable  inference  against  the 
party ;  for  the  exclusion  of  such  evidence  was  for  the  general 
benefit  of  the  community. 


Branch.  Max.  80;  Armory  v.  Dalamirie,  1  Smith  L.  C.  301,  5  ed. ;  Reid 
V.  Fairbanks,  13  C.  B.  729;  Lockey  v.  Pye,  8  M.  &  W.  135;  Marston  v. 
Downes,  1  A.  &  E.  31;  Greening  v.  Wilkinson,  1  C.  &  P.  626;  Bundle  v. 
Little,  6  Q.  B.  178;  Mortimer®.  Cradock,  12  L.  J.  168,  C.  P.;  Liimney  «. 
Wagner,  1  De  G.  M.  &  G.  604;  Pell  «.  Shearman,  10  Exch.  767;  Borra- 
daile  v.  Brunton,  8  Taunt.  535  ;  Wentworth  v.  Lloyd,  10  L.  T.  (N.  S.)  767. 


MAXIM  LXV. 


Omnia  prcssumuntur  rite  et  solenniter  esse  acta :  (Co.  Litt.  0.) 
All  thiDgs  are  presumed  to  be  correctly  and  solemnly 
done. 

THIS  relates  chiefly  to  acts  of  an  official  nature,  as  judgments, 
decrees,  orders  of  court,  and  acts  of  any  jmblic  officer, 
done  by  properly,  or  apparently  properly,  constituted  authori- 
ties ;  which  acts  will  be  presumed  to  be  rightly  done,  and  the 
authorities  rightly  constituted,  until  the  contrary  be  proved. 
The  maxim  also  applies  to  all  cases  of  waiver  by  acquiescence, 
lapse  of  time,  &c.,  where  consent  and  agreement  will  be  pre- 
sumed ;  and  it  is  forcibly  applied  in  settling  ancient  titles. 

The  following  may  be  adduced  as  examples  : — Where  a  lease 
contained  a  covenant  on  the  part  of  the  lessee  that  lie  would 
not  without  the  consent  of  the  lessor  use  the  premises  for  any 
other  purpose  than  a  dwelling-house,  which  nevertheless  he 
converted  into  a  public  house  and  grocer's  shop,  the  lessor,  with 
full  knowledge,  receiving  rent  for  twenty  years  afterwards  ;  it 
was  held  that  such  user  was  evidence  from  which  the  jury 
might  presume  a  license.  Also,  where  a  bill  of  sale  appeared 
to  be  executed  on  the  31st  December,  1860,  and  the  date  of 
the  jurat  of  the  affidavit  filed  with  it  was  the  10th  January, 
1860 ;  the  court  assumed  the  date  in  the  jurat  to  be  a  mistake 
often  made  at  the  commencement  of  the  year,  and  allowed  the 
jurat  to  be  amended.  And  where  an  affidavit  was  entitulated  in 
the  Queen's  Bench,  and  the  person  before  whom  it  was  sworn 
described  himself  as  a  commissioner  for  taking  affidavits  in  the 
Exchequer  of  Pleas  at  Westminster ;  the  court  presumed  the 
commissioner  to  have  authority  to  swear  the  affidavit  until  the 
contrary  was  shown. 

A  bill  of  exchange  is,  in  the  absence  of  proof  to  the  con- 
trary, presumed  to  be  accepted  within  a  reasonable  time  after 
10 


14G  LEGAL     MAXIMS. 

its  date,  before  its  maturity,  and  to  be  issued  at  tlie  time  of  its 
date. 

Tlie  date  of  an  instrument  is  prima  facie  the  date  of  its 
execution.  Where  an  agreement  requiring  a  stamp  is  lost,  and 
was  without  stamp  when  last  seen,  it  will  be  taken  that  it  was 
never  stamped,  and  secondary  evidence  of  its  contents  will 
not  be  received ;  but  where  a  deed  was  left  at  the  stamp  dis- 
tributor's in  the  country  to  be  sent  to  London  to  be  stamped, 
and  the  proper  duty  paid,  but  was  never  seen  after-wards,  it 
will  be  taken  to  have  been  properly  stamped. 

A  decision  of  a  properly  constituted  court  upon  a  subject 
within  its  jurisdiction  is  prima  facie  a  right  decision. 

Where  an  order  given  in  a  matter  decided  by  one  of  the 
superior  courts  not  having  jurisdiction  therein  without  the  con- 
sent of  the  parties,  omitted  to  state  that  it  was  made  by  con- 
sent ;  it  is  immaterial,  as  it  would  be  intended  that  the  court 
had  jurisdiction,  nothing  being  intended  out  of  the  jurisdiction 
of  a  superior  court  but  what  appears  expressly  so  to  be. 

All  things  done  by  tlie  Houses  of  Parliament  are  presumed 
to  be  rightly  done ;  and  so  as  to  the  courts  of  law  and  equity, 
but  the  presumption  is  greater  or  less  according  to  the  superi- 
ority or  inferiority  of  the  court.  But,  as  to  the  Houses  of 
Parliament,  whenever  the  contrary  does  not  plainly  appear,  it 
is  to  be  presumed  that  they  act  within  their  jurisdiction  and 
agreeably  to  the  usages  of  Parliament  and  the  rules  of  law  and 
justice. 

It  is  a  maxim  of  the  law  of  England  to  give  effect  to  every- 
thing which  appears  to  have  been  established  for  a  considerable 
course  of  time,  and  to  presume  that  what  has  been  done  was 
done  of  right  and  not  of  wrong. 


Co.  Litt.  6,  332;  3  Hawk.  P.  C.  219;  3  Wils.  205;  R.  v.  Paty,  2  Ld. 
Raym.  1108  ;  Roberts  v.  Bethell,  12  C.  B.  778;  Gibson  v.  Do8g,  2  H.  &  N. 
623 ;  Powell  v.  Sonnell,  3  Bing.  381 ;  Mayor  of  Beverley  v.  Attorney  Gen- 
eral, 6  H.  L.  Cas.  333 ;  Anderson  v.  Weston,  6  N.  C.  296  ;  Gossett  v. 
Howard,  10  Q.  B.  457;  Cheney  v.  Courtois,  13  C.  B.  (K  S.)  634;  Arbon  v. 
Fussell,  9  Jur.  (K.  S.)  753 ;  Gibson  t.  Small,  4  H.  L.  Cas.  380;  Harrison  v. 
Wright,  13  M.  &  W.  816  ;  Hollingswoith  i\  White,  6  L.  T.  (N.  S.)  604. 


MAXIM  LXVI. 


Omnis  innovatio  jdus  novitate  iiertiirbat  quam  utiUtate  prod- 

est  :  (2  Bulst.  338.) 
Every  innovatiou   disturbs  more   by  its  Dovelty  than 

benefits  by  its  utility. 

rtlHIS  is  the  rule  adopted  by  the  Legislaturo  in  considering- 
-■-  projDOsed  new  laws,  and  by  the  courts  of  law  and  equity 
in  reference  to  adjudged  cases ;  the  rule  being,  that  where  the= 
existing  law  or  established  precedents  reasonably  meet  the  evil 
to  be  remedied,  or  the  case  to  be  decided,  neither  the  one  nor 
the  other  ought  to  be  disturbed.  The  Legislature  do  not,  how- 
ever, hold  to  the  rule  so  strictly  as  the  courts ;  the  former 
being  obliged  to  yield  to  pressure  from  without,  and  therefore 
many  novelties  contravening  this  maxim  become  law  ;  the  lat- 
ter, not  being  generally  subject  to  such  influence,  "  delight  with 
measured  step,  for  safety  and  repose,  strictly  to  tread  the 
beaten  path  of  precedent." 

Where  the  nominee  of  a  copyholder  brought  an  action  on 
the  case  against  the  lord  of  the  manor  for  refusing  to  admit 
him  upon  a  surrender  to  the  use  of  the  nominee  for  life,  it  was 
held  that  an  action  on  the  case  would  not  lie,  the  nominee  hav- 
ing no  interest ;  the  lord  of  the  manor  not  being  a  ministerial 
officer,  and  there  being  no  special  custom  of  the  manor  to  meet 
such  a  case ;  the  lord  of  the  manor  being  as  a  trustee,  who  can- 
not be  sued  at  common  law  for  refusing  to  act.  And  this 
maxim  was  used  by  the  court  to  show  the  inconvenience  of 
permitting  such  innovations  in  the  established  practice  of  the 
courts. 

In  an  action  for  slander,  which  is  a  transitory  action,  the 
plaintiff  in  his  declaration  laid  the  words  spoken  as  in  London  ; 
the  defendant  pleaded  a  concord  for  speaking  words  in  all 
counties  of  England  save  London,  and  traversed  the  speaking 


148  LEGAL     MAXIMS. 

the  words  in  London.  The  plaintiff  replied  denying  the  con- 
cord, whereupon  the  defendant  demurred,  and  judgment  was 
given  for  the  plaintiff.  And  in  that  case  the  court  said,  that  if 
the  concord  should  not  be  traversed,  it  would  follow  that,  by 
a  new  and  subtle  invention  of  pleading,  the  ancient  principle 
of  law  which  allowed  transitory  actions  to  be  tried  in  any 
county  would  be  subverted ;  and,  therefore,  the  court  allowed 
a  traverse  upon  a  traverse. 

Lord  Coke  says  in  reference  to  this  maxim :  that  the  wis- 
dom of  the  judges  and  sages  of  the  law  has  always  suppressed 
new  and  subtle  inventions  in  derogation  of  the  common  law, 
nor  will  they  change  the  law  which  always  has  been  used ;  and 
that  it  is  better  to  be  turned  to  a  fault  than  that  the  law  should 
be  changed  or  any  innovation  made.  He  calls  it  an  excellent 
part  of  legal  learning,  that  when  any  innovation  or  new  inven- 
tion starts  up,  to  try  it  by  the  rules  of  common  law ;  for  that 
they  are  the  true  touchstones  to  sever  the  gold  from  the  dross 
of  novelties  and  new  inventions. 

The  same  principle  has  always  governed  our  judges  and 
sages  in  the  law  since  Lord  Coke's  time  to  the  present.  They 
say,  the  duty  of  a  judge  is  to  expound,  not  to  make  law ;  to 
decide  upon  it  as  he  finds  it,  not  as  he  wishes  it  to  be.  That 
our  common  law  system  consists  in  applying  to  new  combina- 
tions of  circumstances  those  rules  of  law  which  are  derived 
from  legal  principles  and  judicial  precedents ;  and  for  the  sake 
of  attaining  uniformity,  consistency,  and  certainty,  those  rules 
must  be  applied,  where  they  are  not  plainly  unreasonably  in- 
convenient, to  all  cases  which  arise.  And,  further,  that,  if 
there  is  a  particular  hardship  from  particular  circumstances  of 
a  case,  nothing  can  be  more  dangerous  and  mischievous  than, 
upon  those  particular  circumstances,  to  deviate  from  a  general 
rule  of  law. 


Foorde  v.  Hoskins,  2  Bulst.  338 ;  Co.  Litt.  282,  379 ;  4  Inst.  246 ;. 
Pordage  v.  Cole,  1  Saund.  320  ;  Miller  v.  Solomons,  7  Exch.  543 ;  Bridges 
V.  Chandos,  2  Ves.  jun.  426;  Doe  v.  Allen,  8  T.  R.  504  ;  Lozon  v.  Prise,  4 
My.  &  Cr.  617  ;  Mirehonse  v.  Kennell,  1  CI.  &  Fin.  546;  Grey  v.  Friar,  4 
H,  L.  Cas.  565  ;  Mayor  of  Beverley  r.  Attorney  General,  6  H.  L.  Cas.  332 ; 
Smith  V.  Doe,  7  Price,  509;  Dawson  v.  Dyer,  5  B.  «&  Ad.  584;  Kembler  v. 
Farren,  6  Bing.  141. 


MAXIM  LXVII. 


Omnis  ratiliahitio  retrotraliitur  et  mmulato  ^priori  cequi- 
paratur :  (Co.  Litt.  207.) 

Every  ratitication  of  au  act  already  done  has  a  retro- 
spective eftect,  and  is  equal  to  a  previous  request  to 
do  it. 

A]^  instance  of  the  apj^lication  of  this  rule  is  where  an  agent 
acts  in  excess  of  his  authority,  his  acts  being  subse- 
quently acquiesced  in  by  his  j)rincipal.  Also,  where  a  man, 
not  the  agent  of  another,  wrongfully  does  an  act  afterwards 
acquiesced  in  by  the  person  to  whom  the  wrong  is  done.  In 
such  case,  the  wrong-doer  becomes  the  agent,  in  that  matter,  of 
the  party  to  whom  the  wrong  is  done  ;  as,  where  a  man's  prop- 
erty is  wrongfully  sold,  the  owner  may  either  bring  trover 
against  the  wrong-doer,  or  treat  him  as  his  agent,  and  adopt  the 
sale. 

This  rule  applies  generally  to  all  cases  of  contract,  and  to 
such  torts  as  are  capable  of  being  adopted ;  as,  where  the  rela- 
tion of  principal  and  agent  can  be  considered  as  api^licable,, 
and  where  the  act  done  is  for  the  use  or  benefit,  or  in  the 
name  of  the  ratifying  j^arty.  The  ratification,  moreover,  is  re- 
ciprocal, and  may  be  adopted  as  well  for  as  against  the  party 
ratifying,  and  this  even  in  torts  ;  as,  where  a  trespass  is  com- 
mitted without  previous  authority,  subsequent  ratification  will 
enable  the  party  on  whose  behalf  the  act  was  done  to  take  ad- 
vantage of  it. 

In  all  the  ordinary  relations  of  master  and  servant,  princi- 
pal and  agent,  there  is  an  implied  authority  on  the  part  of  the 
servant  and  agent  to  do  such  acts  as  are  necessarily  within  the 
scope  of  their  employment ;  and  the  principal  is  in  such  cases 
bound  thereby.  Where,  however,  anything  is  done  by  them 
not  within  the  scoj^e  of  their  employment,  they  require  a  pre- , 


150  LEGAL     MAXIMS. 

vioiis  autliority  or  a  subsequent  ratification  by  tlieir  principal 
to  make  tlieir  acts  binding  upon  liim  ;  but  when  such  previous 
authority  is  given,  the  act  done  draws  with  it  all  such  conse- 
quences upon  the  principal  as  ordinarily  arise  upon  an  act 
done.  Where  the  relationship  of  master  and  servant  exists, 
and  when  such  ratification  is  given,  the  principal  is  bound  by 
it  to  the  same  extent  as  though  done  by  his  previous  author- 
ity, and  that  whether  it  be  for  his  advantage  or  detriment.  If 
a  stranger  seal  a  deed  by  commandment  precedent,  or  agree- 
ment subsequent,  of  him  who  is  to  seal  it,  before  the  delivery 
of  it,  it  is  as  well  as  if  the  l^arty  to  the  deed  sealed  it  himself. 
And,  therefore,  if  another  man  seal  a  deed  of  mine,  and  I  take 
it  up  afterwards  and  deliver  it  as  my  deed,  this  is  a  good 
agreement  to  an  allowance  of  the  sealing,  and  so  a  good  deed. 
So,  also,  a  deed  may  be  delivered  by  the  party  himself  who 
makes  it,  or  by  any  other  by  his  authority  precedent  or  assent 
or  agreement  subsequent ;  and  W'hen  it  is  delivered  by  another 
who  has  such  good  authority  and  pursues  it,  it  is  as  good  a 
deed  as  if  it  had  been  delivered  by  the  party  himself,  but 
otherwise  if  he  do  not  pursue  his  authority. 

A  servant,  not  having  authority,  having  signed  a  bill  of 
exchange  in  the  name  of  his  master,  the  master's  subsequent 
promise  to  pay  was  held  equal  to  a  previous  authority. 

A  subsequent  recognition  by  the  landlord  of  a  bailiffs  au- 
thority to  distrain  in  his  name  is  suflicient  to  answer  a  plea 
that  the  defendant  was  not  the  bailiif  of  the  landlord.  But 
where  one  distrains  in  his  own  name,  as  for  rent  due  to  him- 
self, and  without  any  authority  from  the  landlord  to  distrain 
on  his  behalf,  a  subsequent  ratification  will  not  sufiice.  N^or  is 
the  receipt  by  the  landlord  of  the  proceeds  of  an  illegal  distress 
in  his  name,  without  knowledge  of  the  facts,  any  ratification 
of  the  illegal  acts  of  the  bailiff 


Co.  Litt.  207,  258;  Shepp.  Touch.  57 ;  Show.  95 ;  Fitzmaurice  v.  Bailey, 
8  Ell.  &  Ell.  868 ;  Pearce  v.  Rogers,  3  Esp.  214 :  Ilaseler  v.  Lemoyne,  28 
L.  J.  103,  C.  P.;  Fenn  v.  Harrison,  4  T.  R.  177;  Trevillian  «.  Pme,  11 
Mod.  112;  Lewis  «.  Read,  13  M.  &  W.  834;  Pyle  «.  Partridge,  15  M.  & 
W.  20  ;  Wilson  v.  Tummon,  6  Sc.  N.  R.  904;  Whitehead  v.  Taylor,  10  A. 
&  E.  213;  Todd  v.  Robiuson,  R.  &  M.  217. 


MAXIM  LXVIII. 


OjMmus  interpres  rerum  usus :  (2  Inst.  282.) 
The  best  interpreter  of  things  is  usage. 

LORD  COKE  says  that  ancient  charters,  whether  before 
the  time  of  memory  or  not,  ought  to  be  construed  as 
tlie  law  was  taken  w^hen  the  charter  was  made,  and  according 
to  ancient  allowance  ;  and,  that  when  any  claimed  before  the 
justices  in  eyre  any  franchises  by  ancient  charter,  though  it 
had  express  words  for  the  franchises  claimed  ;  or,  if  the  words 
were  general,  and  a  continual  possession  pleaded  of  the  fran- 
chises claimed ;  or,  if  the  claim  was  by  old  and  obscure  words, 
and  the  party  in  pleading  expounded  them  to  the  court,  aver- 
ring continual  possession  according  to  that  exposition  ;  the 
entry  ever  was,  "  Inquiratur  super  possessionem  et  usum," 
&c.,  agreeable  to  that  old  rule,  "  OjDtimus  interpres  rerum 
usus." 

The  custom  of  the  country  with  respect  to  the  right  of  the 
tenant  or  lessee  to  take  away  growing  crops  at  the  expiration 
of  the  term,  and  as  to  the  mode  of  cultivation  of  the  lands  in 
lease,  must  be  considered  as  impliedly  annexed  to  the  terms  of 
a  lease,  unless  expressly  excluded ;  and  this  is  in  accordance 
with  the  maxim  under  consideration.  By  custom,  in  some 
districts  the  outgoing  tenant  is  bound  to  leave  upon  the  prem- 
ises a  certain  quantity  of  clover  and  grass  seeds,  or  fallow, 
^r  turnips,  or  hay  and  straw,  or  manure,  or  to  consume  all  the 
hay  and  straw  upon  the  premises,  and  many  other  such  like 
conditions  ;  all  which  will,  in  the  construction  of  any  contract 
of  tenancy,  be  considered  as  forming  part  of  it,  unless  ex- 
pressly excluded  ;  and  parol  evidence  of  the  custom  and  usage 
is  always  admissible  to  ascertain  the  rights  and  liabilities  of 
the  parties  to  the  contract.  But  parol  evidence  of  custom 
;and  usage  will  not  be  admitted  to  nullify  the  express  provis- 


152  LEGAL    MAXIMS. 

ions  of  sucli  contract.  The  same  rule  applies  to  mercantile 
contracts  and  usages. 

This  maxim  may  not  inaptly  be  called  a  creature  of  cir- 
cumstance, and  the  reason  of  it,  a  state  of  things  acquiesced  in 
rather  than  agreed  to,  the  law  of  times  of  ignorance,  and 
indifference  ;  and  though  old  customs  still  remain,  and  habit 
and  practice,  for  convenience  of  people  and  encouragement  of 
commercial  enterprise,  assume  with  us  the  name  of  custom, 
yet,  written  law  is,  in  modern  times,  gradually  assuming  the 
ascendency  over,  if  not  the  total  abrogation  of,  custom.  Cus- 
tom, however,  whether  particular  or  general,  is  law,  and  usage 
is  evidence  of  custom.  Common  or  general  custom  is  the 
common  law  of  the  country,  and  particular  custom  the  partic- 
ular law  of  the  place,  person,  or  thing  to  which  it  applies. 

There  are,  however,  some  limits  to  a  custom.  For  exam- 
ple, it  must  be  obligatory,  reasonable,  and  certain.  It  must 
not  be  against  the  good  of  the  public,  nor  the  many,  and  in 
favor  of  a  few,  or  one  person.  It  must  have  existed,  without 
interruption,  from  time  immemorial.  And,  lastly,  it  cannot 
prevail  against  a  public  statute,  or  express  contract  hiter pa/Hes. 

The  following  maxims  also  are  applicable  to  this  : — "  Con- 
suetudo  ex  certa  causa  rationabili  usitata  privat  communem 
legem  " — A  custom  proceeding  from  certain  reasonable  use 
supersedes  the  common  law  ;  but,  "  Consuetudo,  licit  sit  magnse 
auctoritatis,  nunquam  tamen  prtejudicat  manifestos  veritati " — 
A  custom,  though  allowed  upon  great  authority,  should  never 
be  permitted  to  prejudice  manifest  truth. 

The  maxim,  "  Modus  et  conventio  vincunt  legem,"  may 
also  be  considered  in  connection  with  this. 


Co.  Litt.  169;  2  Inst.  18,  282;  4  Inst.  75;  4  Co.  18;  8  Co.  117;  Grant 
V.  Madclox,  15  M.  &  W.  737;  Gibsons.  Minet,  1  H.  Bl.  614;  Wiggles- 
worth  V.  Dallison,  1  Doug.  201 ;  Mousley  v.  Ludlam,  21  L.  J.  64,  Q.  B. ; 
Smith  V.  Wilson,  3  B.  &  Ad.  728;  Holding  v.  Piggott,  5  M.  &  P.  427; 
Clarke  v.  Roystone,  13  M.  &  W.  752;  Hutton  v.  Warren,  1  M.  &  W.  475; 
Bartlett  v.  Pentland,  10  B.  &  C.  770;  Morrison  v.  Chadwick,  7  C.  B.  2GG ; 
Lucas  V.  Bristow,  27  L.  J.  364,  Q.  B. 


MAXIM   LXIX. 


Persona   conjiuicta  ceqidparatiir   interesse  2)i-oprio :    (Bac, 

Max.  18.) 
A  personal  connection  equals,   in   law,   a  man's   own 

proper  interest. 

THIS  rule  of  personal  connection  or  nearness  of  blood,  ap- 
plies in  the  following  and  similar  cases: — Where  the 
rights  and  liabilities  of  man  and  woman  are  changed  by  mar- 
riage ;  where  a  parent  is  permitted  to  defend  his  child  against 
injury  ;  where  the  parent,  though  an  infant,  is  liable  upon  his 
contract  for  the  nursing  of  his  child ;  where  an  infant  widow 
is  liable  upon  her  contract  for  the  funeral  expenses  of  her  de- 
ceased husband  ;  where  relationship  is  a  good  consideration  in 
a  deed  ;  where  a  wife  cannot  be  compelled  to  give  evidence 
for  or  against  her  husband,  and  vice  versa,  in  criminal  cases  and 
in  questions  of  adultery,  or  to  disclose  communications  made 
to  each  other  during  marriage. 

The  following  may  serve  for  examples  of  the  application  of 
tlie  rule  in  practice : — A  husband  is  entitled  to  his  wife's  per- 
sonal estate  and  chattels  real,  absolutely  ;  and  to  her  choses  in 
action,  conditionally  upon  his  reducing  them  into  possession 
during  the  coverture :  and  the  rents  and  profits  of  her  real 
estate  during  his  life.  He  has  the  right  of  administration  of 
the  estate  of  a  testator  in  case  his  wife  is  made  executrix,  as 
well  as  of  the  estate  of  an  intestate  where  she  is  entitled  as  ad- 
ministratrix. The  wife  is  unable  to  sue  ujion  her  choses  in 
action  without  joining  her  husband.  By  the  marriage,  the  hus- 
band and  wife  are  one  in  law ;  and  t]ie*wife  cannot  bind  her- 
s^f,  or  her  husband,  by  deed,  or  by  simple  contract,  except  as 
the  agent  of  the  husband.  On  a  corresponding  principle  of 
accretion,  the  husband  takes  upon  himself  the  burden  of  his 
wife's  debts  and  other  liabilities  at  the  time  of  marriage ;  the 


154  LEGAL    MAXIMS. 

wife  has  the  general  management  of  her  husband's  domestic 
affairs,  and  is  presumed  to  be  his  general  agent  in  such  matters, 
and  to  be  clothed  with  sufficient  authority  to  bind  the  husband 
in  contracts  for  all  things  necessary  for  the  maintenance  of 
herself  and  family,  according  to  the  husband's  apparent  posi- 
tion in  society. 

An  infant  widow  has  been  held  bound  by  her  contract  for 
the  furnishing  the  funeral  of  her  deceased  husband,  who  had 
left  no  property ;  and  this  on  the  ground  that  the  goods  fur- 
nished were  necessaries,  that  is,  that  the  funeral  was  necessary, 
and  for  her  benefit.  And  it  was  in  that  case  stated  that  the 
law  permits  an  infant  to  make  a  valid  contract  of  marriage,  and 
that  all  necessaries  furnished  to  those  with  whom  he  becomes 
one  person  by  or  through  the  contract  of  marriage  are,  in  point 
of  law,  necessaries  to  the  infant  himself.  Lord  Bacon's  illus- 
tration of  this  maxim  was  there  applied  :  that  if  a  man  under 
age  contract  for  nursing  his  lawful  child,  the  contract  is  good, 
and  shall  not  be  avoided  by  infancy  any  more  than  if  he  had 
contracted  for  his  own  necessaries.  Also,  that  decent  burial  is 
reasonably  necessary  for  a  man,  and  his  property,  if  any,  is 
reasonably  liable  to  be  appropriated  to  that  purpose :  that  be- 
ing so,  the  decent  burial  of  his  wife  and  children,  who  were 
l)ersoncG  conjunctm  with  him,  was  a  personal  advantage  and 
necessary,  and  he  might  make  a  binding  contract ;  and  so  in 
like  manner  might  the  wife  for  the  burial  of  the  husband ;  and 
this  upon  the  rights  and  liabilities  arising  out  of  the  infant's 
previous  contract  of  marriage. 

The  moral  obligation,  however,  under  which  a  father  is  to 
provide  for  his  child  imposes  on  him  no  legal  liability  to  pay 
the  debts  incurred  by  the  child  ;  and  he  is  not  so  liable,  unless 
lie  has  given  the  child  authority  to  incur  them,  or  has  agreed 
to  pay  them,  any  more  than  a  brother,  uncle,  or  stranger. 


Bac.  Max.  18;  Co.  Litt.  6;  Beadle  v.  Sherman,  Cro.  Eliz.  608;  Volley 
V.  Handcock,  7  Exch.  820i»Ch:.pple  v.  Cooper,  13  M.  &  W.  259  ;  Mortimore 
V.  Wright,  6  M.  &  W.  482 ;  Pemberton  v.  Chapman,  7  Ell.  &  Bl.  210 ;  Joens 
V.  Butler,  7  Ell.  &  Bl.  159  ;  De  Wahl  v.  Braune,  25  L.  J.  343,  Ex.  ;  B(»g- 
gett  V.  Friar,  11  East,  301  ;  Read  v.  Legard,  G  Exch.  636;  16  &  17  Vict. 
c.  83. 


MAXIM  LXX. 


Quando  jus  domini  regis  et  suhditi  concurrunt,  jus   regis 

2)ra:ferri  debet :  (9  Co.  129.) 
When  the  rights  of  the  king-  and  of  the  subject  concur, 

those  of  the  king  are  to  be  preferred. 

THIS  prerogative  is  said  to  depend  upon  the  principle  tliat 
no  laches  can  be  imputed  to  the  king,  who  is  supposed 
by  our  law  to  be  so  engrossed  by  public  business  as  not  to 
be  able  to  take  care  of  every  private  matter  relating  to  the 
revenue  ;  and  that  the  king  is  in  reality  to  be  understood 
as  the  nation  at  large,  to  whose  interest  that  of  any  private 
individual  ought  to  give  way ;  and  which  prerogative,  until 
restrained  by  recent  statutes,  extended  to  prevent  the  other 
creditors  of  the  king's  debtor  or  person  indebted  to  the 
crown,  from  suing  him,  and  the  king's  debtor  from  making 
any  will  of  his  personal  effects  without  the  sanction  of  the 
crown. 

It  has  been  held  that  after  seizure  and  before  sale  under  a 
writ  of  Ji'.  fa.,  whilst  the  defendant's  goods  were  yet  in  the 
possession  of  the  sheriff,  the  officers  of  customs  having  seized 
them  under  a  warrant  to  levy  a  penalty  incurred  by  the  de- 
fendant for  an  offense  against  the  revenue  laws ;  the  sheriff' 
was  justified  in  returning  mdla  hona  to  the  writ  of  fi.  fa. 
Also,  that  goods  of  a  debtor  already  seized  under  a  writ  of 
fi.  fa..,  but  not  sold,  may  be  taken  under  a  writ  of  extent,  in 
chief  or  in  aid,  tested  after  such  seizure.  The  rule  as  to  writs 
of  execution  being ;  as  to  ordinary  persons,  that  the  writ  first 
delivered  to  the  sheriff  shall  be  first  executed,  without  regard 
to  the  teste ;  but  as  between  the  king  and  a  subject,  the 
king's  writ,  though  delivered  last,  shall  be  executed  first,  with- 
out regard  to  the  teste  ;  the  proj^erty  in  the  goods  not  being 
changed    by   the   seizure,    and    the   writs   being   concurring. 


156  LEGAL    MAXIMS. 

Where,  however,  the  property  has  been  changed,  and  the  right 
of  the  subject  is  complete  before  that  of  tlie  king  commences, 
the  rale  does  not  apply ;  for  there  is  in  that  case  no  point  at 
which  the  two  rights  conflict ;  nor  can  there  be  a  question  as 
to  which  of  the  two  claims  ought  to  prevail  when  that  of  the 
subject  has  prevailed  already.  The  property  in  goods  seized 
by  the  sheriff  under  a  fi.  fa.  is  not  clianged,  however,  until 
sale,  and  the  execution  debtor,  upon  tendering  the  amount  for 
which  the  levy  is  made,  with  the  sheriff's  charges  thereon,  is 
entitled  to  a  return  of  the  goods.  The  right  of  the  crown  is, 
however,  upon  the  same  principle  of  concurrence  or  privity, 
subject  to  any  special  property  in  the  goods  created  by  act 
of  the  party  ;  as,  where  a  factor  holds  goods  upon  which  he 
has  a  lien  for  advances  made  before  the  teste  of  the  writ,  the 
crown  can  only  take  the  goods  subject  to  that  lien ;  and  so  of 
goods  pledged.  The  difference  in  the  cases  being,  that  goods 
in  possession  of  the  sheriff — the  rule  applies  to  an  assignee  in 
bankruptcy  also — are  in  custod'td  legis,  for  the  benefit  of  the 
parties  entitled ;  but  those  in  the  hands  of  the  factor,  or 
pawnee,  are  in  the  hands  of  the  parties  themselves  ;  those 
in  custodid  legis  being  in  a  situation  in  Avhicli  the  right  of  the 
crown  and  that  of  the  subject  may  come  in  conflict,  but  those 
in  possession  of  the  parties  not  being  in  such  a  situation. 

It  may  also  be  observed  that  in  all  cases  of  joint  grants, 
devises,  and  gifts  to  the  king  and  a  subject,  incapable  of  sepa- 
ration and  division,  the  king  shall  take  the  whole ;  it  being 
inconsistent  with  the  dignity  of  a  king  to  be  joint  owner  of 
property  with  a  subject. 


2  Inst.  713  ;  0  Co.  129  ;  Co.  Litt.  30;  2  &  8  Bla.  Com. ;  1  Burr.  3G  ; 
Gilb.  H.  E.  110  ;  Dyer,  67  ;  Rex  v.  Lee,  6  Price,  869  ;  Rex  v.  Cotton, 
Parker,  112  ;  Reg.  v.  Edwards,  9  Exch.  32;  Grove  v.  Aldridge,  9  Bing. 
428  ;  Giles  v.  Grover,  9  Bing.  128 ;  Lambert  v.  Taylor,  4  B.  &  C.  151 ; 
Foster  v.  Jackson,  Hob.  60 ;  Attorney  General  v.  Parsons,  2  M.  &  W.  23 ; 
Hopkins  v.  Clarke,  11  L.  T.  (N.  S.)  205. 


MAXIM  LXXI. 


Quando  lex  ciUquid  alicui  concedit,  concedere  videtur  id  sine 

quo  res  ipsa  esse  non  xwtest :  (5  Co.  47.) 
When  tlie  law  gives  anything  to  any  one,  it  gives  also  all 

those  things  without  which  the  thing  itself  would 

be  unavailable. 

WHERE  by  charter  a  select  body  in  a  corporation  liad 
power  to  make  by-laws  for  the  good  rule  and  govern- 
ment of  the  borough,  letting  its  lands,  and  other  matters  and 
causes  whatsoever  concerning  the  borough  ;  and  by  the  char- 
ter it  was  also  directed  that  the  mayor,  bailiifs,  and  burgesses 
should  from  time  to  time  elect  other  burgesses ;  it  was  held 
that  the  general  body  of  mayor,  bailiffs,  and  burgesses  might 
make  a  by-law  that  the  burgesses  should  be  elected  by  the 
select  body.  In  which  case  it  was  stated  to  be  a  legal  incident 
to  every  corporation  to  have  the  power  of  making  by-laws, 
regulations,  and  ordinances  relative  to  the  purposes  for  which 
such  corporation  was  instituted  ;  and  that  when  the  crown 
creates  a  corporation,  it  grants  to  it,  by  implication,  all  powers 
that  are  necessary  for  carrying  into  effect  the  objects  for  whicli 
it  was  created ;  upon  the  maxim,  "  Qui  concedit  aliquid  con- 
cedere videtur  et  id  sine  quo  res  ipsa  esse  non  potest." 

A  person  who  is  entitled  to  expose  goods  for  sale  in  a  pub- 
lic market  has  a  right  to  occupy  the  soil  with  baskets  neces- 
sary and  proper  for  containing  the  goods ;  and  that  as  against 
one  to  whom  the  owner  of  the  fee  simple  of  the  soil  has  made 
a  demise. 

A  railway  company  having  authority  of  Parliament  to  con- 
struct a  railway,  are  impliedly  authorized  to  do  all  things  ne- 
cessary for  the  construction  of  the  railway ;  as,  where  they 
had  authority  to  construct  a  bridge  across  another  railway, 
they  had  a  right  to  place  temporary  scaffolding  on  the  land  of 


158  LEGAL    MAXIMS. 

«■ 

such  other  railway,  if  necessary  for  the  construction  of  tlie 
bridge ;  and  their  workmen  could  pass  and  repass  upon  such 
other  railway  in  doing  all  things  necessary  for  such  construc- 
tion ;  upon  the  principle  that,  "  Ubi  aliquid  conceditur,  con- 
ceditur  etiani  id  sine  quo  res  ipsa  non  esse  potest." 

Tlie  sheriff  is  authorized  to  raise  the  2^osse  comitaius,  or 
power  of  the  county,  to  assist  him,  if  necessary,  in  executing 
process.  So  all  other  officers  of  the  law  are  provided  with  the 
means  necessary  to  carry  the  law  into  effect. 

The  same  rule  applies  also  to  individuals  ;  as,  "  Qui  con- 
cedit  aliquid  concedere  videtur  et  id  sine  quo  concessio  est  ir- 
rita,  sine  quo  res  ipsa  esse  non  potuit."  As,  where  a  man 
grants  a  piece  of  land,  or  a  house,  he  imjjliedly  grants  that 
without  which  the  land  or  the  house  would  be  useless,  as  a 
right  of  road,  &c.  ;  or  of  mines,  a  right  of  entry  to  dig  for, 
get,  and  carry  away  the  minerals. 

It  must,  however,  be  borne  in  mind  that  when  the  law 
gives  anything,  the  right  so  acquired  must  in  nowise  be  ex- 
ceeded, and  that  more  especially  as  to  private  rights  ;  as,  in  a 
grant  to  a  corporation  or  public  company  ;  foi*,  anything  done 
in  excess  of  the  right  granted  will  be  ultra  vi?'es  and  void.  So 
where  an  Act  of  Parliament  constituting  a  company  specifies 
the  nature  and  object  for  which  the  company  is  constituted,  as 
a  railway  company  ;  and  the  company,  notwithstanding,  en- 
gage in  some  other  undertaking  not  warranted  by  the  act ;  a 
court  of  equity  will  grant  an  injunction  restraining  the  com- 
pany from  acting  beyond  the  limits  of  the  powers  given  by 
the  act,  even  at  the  instance  of  a  single  sliareholder,  and  against 
the  concurrence  in  the  new  undertaking  of  all  the  others. 


4  Co.  77 ;  5  Co.  47,  116 ;  10  Co.  30  ;  11  Co.  52  ;  2  P.  Wms.  207  ;  2  Inst. 
326  ;  Comb.  316  ;  12  East,  22;  Austin  v.  Wbittred,  Willes,  623  ;  Mayor  of 
Norwich  v.  Swann,  2  W.  Bl.  1115;  Mayor  of  Northampton  v.  Ward,  2  Str. 
1238;  R.  «.  Westwood,  7  Bing.  1;  Clarence  Railway  Company  «.  Great 
North  of  England  Railway  Company,  13  M.  &  W.  706;  Townsend  v. 
Woodruff,  5  Exch.  506;  Hare  v.  Loudon  and  North-Western  Railway 
Company,  30  L.  J.  817,  Ch. 


MAXIM  LXXII. 


Quando  plus  fit  quam  fieri  debet,  videtur  etiam  illiid  fieri  quod 

faciendum  est  r  (8  Co.  85.) 
When  more  is  done  than  ought  to  be  done,  then  that  is 

considered  to  have  been  done  which  ought  to  have 

been  done. 

TO  allow  the  contrary  of  this  maxim  would  be  to  permit  a 
man  to  take  advantage  of  his  own  wrong,  as  in  the  case  of 
a  termor  for  twenty  years  granting  a  lease  for  thirty ;  but  in 
such  a  case,  under  this  maxim,  the  lease  would  be  good  for  the 
twenty  years  and  void  as  to  the  excess ;  and  so  it  is  in  the  ex- 
ercise of  an  authority  given  under  a  power,  and  in  similar 
eases. 

Where  there  is  a  custom  that  a  man  shall  not  devise  his 
lands  for  a  greater  estate  than  for  life  ;  yet,  if  he  devise  in  fee, 
the  devise  will  be  good  as  a  devise  for  life.  Where  a  grantor 
is  entitled  to  certain  shares  only,  in  land,  the  grant,  in  constru- 
ing it,  will  be  confined  to  the  words  of  the  grant ;  and  there- 
fore, it  is  said,  that  if  a  person  having  three-sixth  parts,  grant 
two-sixth  parts,  those  shares  only  will  pass ;  but,  on  the  other 
hand,  if  the  grant  import  to  pass  more  shares  than  the  grantor 
has,  it  will  be  good  to  pass  those  he  has.  And  so,  if  a  person 
having  one-third  part,  grand  all  those  his  two-third  parts,  the 
grant  will  pass  his  one-third.  So,  where  lands  were  devised  to 
trustees  upon  trust  to  the  use  of  W.  B.  B.  and  his  first  and 
other  sons  in  strict  settlement,  remainder  to  F.  B.  and  his  first 
and  other  sons  in  strict  settlement,  with  power  to  grant  any 
lease  of  all  or  any  part  of  the  lands  so  limited,  so  as  tliere  be 
reserved  the  ancient  and  accustomed  yearly  rent,  etc. ;  it  was 
held  that  a  lease  by  W.  B.  B.  of  part  of  the  lands  devised, 
in  several  parcels ;  in  one  of  which  parcels  were  included,  to- 
gether with  lands  anciently  demised,  two  closes  never  before 


IGO  LEGAL     MAXIMS. 

demised,  at  one  entire  rent ;  was  void  for  tlie  whole  of  the 
lands  included  in  tliat  parcel,  as  well  the  lands  never  before  let 
as  those  anciently  let ;  but,  it-  seems,  good  as  to  the  other  par- 
cels which  contained  only  lands  anciently  demised,  and  on  each 
of  which  there  was  a  several  reservation  of  the  ancient  rent. 

Where  one  leased  lands  of  part  of  which  he  was  seized  in 
fee  and  part  for  life,  with  a  power  of  leasing ;  but  which  was 
not  well  executed  according  to  the  power ;  at  one  entire  rent ; 
the  lease  was  held  good,  after  the  death  of  the  lessor,  for  the 
lands  held  in  fee,  though  not  for  the  others.  If  a  lessor  grant 
more  than  he  has  a  right  to  do ;  as,  an  exclusive  right  to  sport 
over  the  lands  leased,  he  not  having  any  such  exclusive  right ; 
the  lease  will  not  be  void,  but  an  apportionment  of  the  rent 
will  be  made  in  respect  of  such  right.  Where  a  man  grants  a 
rent  charge  out  of  more  lands  than  he  has,  his  heir  shall  not 
take  advantage  of  the  wrong  to  set  aside  the  grant ;  but  if  the 
rent  be  reserved,  it  being  reserved  out  of  the  whole  land,  in 
that  case,  there  being  an  eviction  as  to  part  of  the  land  by  title 
paramount,  the  lessee  cannot  be  charged  with  the  whole  rent, 
but  it  must  be  apportioned.  But  where  a  lessee  by  parol,  of 
land,  found,  upon  entry,  eight  acres  in  possession  of  a  prior 
lessee  by  deed,  and  who  kept  possession  until  half  a  year's  rent 
became  due ;  the  lessee  by  parol  continuing  in  possession  of 
the  remainder,  the  prior  lease  extending  in  term  beyond  the 
latter ;  it  was  held  that  the  latter  was  wholly  void  as  to  the 
eight  acres,  and  the  rent  not  apportionable  ;  the  inability  of  the 
lessee  to  take  possession  not  arising  from  eviction  by  title  par- 
amount. 


5  Co.  4, 115 ;  8  Co.  85 ;  Co.  Litt.  148  ;  3  Inst.  107 ;  Stevenson  v.  Lambard,  2 
East,  575 ;  Noy  Max.  25  ;  3  Prest.  Abs.  35 ;  Doe  v.  Meyler,  2  M.  &  S.  276 ; 
How  V.  Whitfield,  1  Ventr.  338;  Ld.  Raym.  267  ;  2  Roll.  Abr.  262,  pi.  15; 
Tomlinson  v.  Day,  2  B.  &  B.  680;  Doe  v.  Williams,  11  Q.  B.  688;  Neale 
V.  M'Kenzie,  1  M.  &  W.  747 ;  Bartlett  v.  Rendle,  3  M.  &  S.  99  ;  Doe  deiti. 
Williams  v.  Matthews,  5  B.  &  Ad.  298.' 


MAXIM  LXXIII. 


Quicquid  plantatur  solo,  solo  cedit :  (Went.  Off.  Ex.  58.) 
Whatever  is  aflSxed  to  the  soil  belongs  to  the  soil. 

rilHIS  maxim  applies  to  all  those  cases  where  one  builds, 
-^  plants,  sows,  &c.,  upon  the  land  of  another ;  in  which 
cases,  prima  facie,  and  without  any  evidence  of  consent  or 
agreement  to  the  contrary,  the  buildings  erected,  trees  planted, 
seed  sown,  &c.,  become  at  once  the  property  of  the  owner  of 
the  land. 

The  application  of  the  maxim  in  jDractice  is  generally  con- 
versely, on  a  question  of  fixtures.  Formerly,  if  a  tenant  or 
occupier  of  a  house,  or  land,  annexed  anything  to  the  free- 
hold, neither  he  nor  his  representatives  could  afterwards  take 
it  away ;  but  now,  the  temporary  owner  or  occupier  of  real 
property  or  his  representatives  has  a  right  to  remove  certain 
articles,  though  annexed  by  him  to  the  freehold,  and  those 
articles  are  called  fixtures.  That  is,  those  articles  which  were 
originally  personal  chattels,  and  which,  though  they  have  been 
annexed  to  the  freehold  by  a  temporary  occupier  for  a  tempo- 
rary purpose,  are  nevertheless  removable  at  tlie  will  of  the 
person  who  annexed  them.  The  term  fixture  does  not,  how- 
ever, include  everything  fixed  and  rendered  immovable,  but 
the  object  of  the  annexation  must  be  looked  at,  and,  if  a  chat- 
tel be  fixed  to  a  building  for  the  more  complete  enjoyment 
and  user  of  it  as  a  chattel,  and  not  as  absolutely  necessary  for 
the  user  of  the  building  itseK  as  such,  it  is  not  a  fixture  at  all, 
but  a  chattel  still. 

When  the  principle  of  this  maxim  was  first  adopted,  fix- 
tures as  now  understood  were  not  known,  and  the  maxim  was 
then  applicable  to  all  things  affixed  to  the  freehold  indiscrim- 
inately ;  now,  however,  it  is  in  strictness  applicable  only  to 
those  particular  things  which  do  not  come  under  the  denom- 
11 


162  LEGAL    MAXIMS. 

ination  of  fixtures,  inasmuch  as  those  things  which  may  of 
right  be  severed  from  the  freehold  cannot  be  said  of  right  to 
form  part  of  the  freehold. 

Fixtures  are  considered  as  divided  into  three  kinds,  land- 
lord's, tenant's,  and  trade  fixtures,  and,  as  such,  may,  strictly 
speaking,  be  considered  excejDtions  to  the  above  general  max- 
im, and  as  having  particular  rights  annexed  to  them,  which 
render  the  rule  inapplicable ;  and  the  maxim  may  not  improp- 
erly be  said  to  apply  to  those  cases  only  which  do  not  come 
within  the  term  fixtures  as  above  used,  but  to  those  cases  only 
in  which  the  maxim  applies  absolutely.  For,  under  the  max- 
im, whatever  is  aflixed  to  the  soil  belongs  to  the  soil,  becomes 
part  of  it,  and  is  subject  to  the  same  rights  as  the  soil  itself, 
which  is  not  the  case  with  fixtures  as  above  defined,  which  are, 
notwithstanding  their  being  so  fixed,  subject  to  certain  rights 
inconsistent  with  their  forming  part  of  the  freehold,  and  of 
their  being  the  absolute  property  of  the  owner  of  the  fee. 

Where  the  owner  of  the  freehold  affixes  anything  in  the 
nature  of  a  fixture  to  the  soil,  for  the  permanent  use  and  en- 
joyment of  the  soil,  that  forms  part  of  it,  as  though  it  had 
been  originally  built  upon  and  incorporated  with  it ;  but  it 
cannot  be  so  said  of  fixtures  which  were  attached  to  the  free- 
hold in  a  restricted  sense  for  a  particular  purpose,  and  by  some 
one  not  having  any  interest  in  the  freehold. 

The  maxim,  however,  may  be  said  to  apply  in  its  strict 
sense  to  all  those  cases  where  buildings  are  erected  upon  land, 
or  fixtures  affixed  to  buildings,  by  a  man  upon  his  own  land  or 
by  one  man  upon  the  land  of  another.  In  which  cases,  in  the 
absence  of  any  express  or  implied  agreement  to  the  contrary, 
the  buildings  and  fixtures  belong  to  the  owner  of  the  soil. 


Went.  Off.  Ex.  53  ;  Co.  Litt.  53  ;  1  Atk.  477;  3  Atk.  13;  P.'ntou  v. 
Robart,  2  East,  88;  3  Smith  L.  C.  144,  4  ed.  ;  Wiltshear  v.  Cottrell,  1  E. 
&  B.  674;  Lee  v.  Risdou,  7  Taunt.  191;  Hallen  v.  Runder,  1  C.  M.  &  R. 
260  ;  Woodf.  L.  &  T.  8  ed.  493  ;  Waliusley  v.  Milne,  7  C.  B.  (N.  S.)  115  ; 
Elliott  V.  Bishop,  10  Exch.  507 ;  Miushiill  v.  Lloyd,  2  M.  &  W.  450  ;  Lan- 
caster V.  Eve,  32  L.  T.  278;  Mather  v.  Frazer,  2  K.  &  J.  536. 


MAXIM  LXXIV. 


'Quicqiiid  solvitur,  solvitiir  secundum  modum  solventis ; 
quicquid  recipitiir,  recipitur  secundum  modum  recipien- 
tis  :  (2  Vern.  606.) 

Whatsoever  is  paid,  is  paid  according  to  the  intention 
or  manner  of  the  party  jiaying ;  whatsoever  is  re- 
ceived, is  received  according  to  the  intention  or 
manner  of  the  party  receiving, 

TTPOK  payment  of  money,  the  debtor  may  direct  in  what 
^  manner  the  money  must  be  appropriated,  and  the  cred- 
itor cannot  alter  this  appropriation  without  the  consent  of  the 
debtor.  And  this  appropriation  by  the  debtor  may  be  implied ; 
as,  where  a  particular  debt  of  a  precise  sum  being  demanded, 
he  pays  it,  though  others  be  due  at  the  same  time.  But  in  the 
absence  of  any  appropriation  by  the  debtor,  the  creditor  may 
make  such  appropriation  as  may  suit  him ;  as,  if  A.  owe'  B.  two 
sums  of  money,  one  barred  by  the  statute  of  limitations  and 
the  other  not ;  or  one  in  dispute  and  the  other  not ;  or  one  on 
covenant  and  the  other  on  simple  contract ;  if  no  appropria- 
tion be  made  by  the  debtor  at  the  time  of  payment,  the  cred- 
itor can  apply  the  money  in  discliarge  of  the  debt  barred  by 
the  statute,  or  in  dispute,  or  of  the  simple  contract  debt ;  but 
not  in  discharge  of  an  unlawful  debt,  so  as  to  enable  him  to 
sue  for  the  lawful. 

If,  however,  neither  party  make  an  appropriation,  the  law 
appropriates  the  payment  to  the  oldest  debt  5  or,  in  case  of  one 
part  of  the  claim  being  barred  by  tlie  statute  of  limitations,  to 
the  debts  generally,  as  the  circumstances  of  the  case  may  seem 
to  require.  The  debtor,  moreover,  is  required  to  direct  the  ap- 
propriation at  tlie  time  of  payment,  but  the  creditor  may  do  it 
at  any  time  afterwards,  before  the  appropriation  be  questioned. 

The  general  rule  to  be  observed  is,  that  priority  of  debt 


164  LEGAL    MAXIMS. 

draws  after  it  priority  of  payment,  the  oldest  debt  being  enti- 
tled to  be  first  satisfied.  The  rule  applies  only  to  legal  obli- 
gations ;  and  in  its  strictness  is  not  adopted  in  courts  of  equity ; 
for,  where  no  particular  appropriation  has  been  made  by  either 
party  at  the  time  of  payment,  a  court  of  equity  will  be  influ- 
enced in  the  appropriation  by  the  consideration  of  which  is  the 
most  onerous  debt,  in  order  to  its  discharge,  in  preference  of 
one  less  onerous,  or  in  respect  of  which  the  creditor  has  a. 
remedy  elsewhere  or  otherwise. 

Where  one  of  several  partners  dies,  the  partnership  being 
in  debt,  and  the  survivors  continue  to  deal  with  a  particular 
creditor  of  the  firm,  who  joins  the  transactions  of  the  old  and 
new  firm  into  one  account,  the  payments  made  from  time  to 
time  by  the  surviving  partners  will  be  applied  to  the  old  debt. 
In  which  case  it  is  presumed  that  all  the  parties  have  consented 
to  such  appropriation. 

So,  where  under  a  will,  of  which  some  of  the  partners  of  a 
bank  were  executors,  the  estate  was  made  liable  to  a  specified 
amount  for  the  debt  of  a  customer  of  the  bank  due  at  the  death 
of  the  testatrix;  the  account  was  continued  in  the  ordinary 
form  of  banking  accounts  charging  the  customer  with  the 
whole  debt  from  time  to  time  in  the  half-yearly  balances,  and 
at  a  later  period  one  of  the  executors,  also  a  partner  in  the 
bank,  wrote  a  letter  to  the  customer  which  amounted  to  a  rep- 
resentation that  the  payments  in,  to  his  account,  were  appro- 
priated to  the  later,  unsecured,  items  of  the  debt.  It  was  held 
that  an  appropriation  of  past  payments  could  not  be  made  by 
an  executor  so  as  to  revive  a  lapsed  liability  of  his  estate,  and 
that  the  latter  had  not  a  retrospective  operation ;  and  also,  that 
the  subsequent  payments  by  the  creditor,  made  on  the  faith  of 
the  representations  in  the  letter,  must  be  appropriated  to  the 
later  items  of  debt. 


2  Vern.  606;  Clayton's  Case,  1  Mer.  585  ;  Goddart  v.  Cox,  Str.  1194; 
Philpott  V.  Jones,  2  Ad.  &  Ell.  44  ;  Plomer  v.  Long,  1  Stark.  154  ;  Croft 
V.  Lumley,  27  L.  J.  334,  Q.  B. ;  Peters  v.  Anderson,  5  Taunt.  596;  Mills  v, 
Fowkes,  5  Bing.  N.  C.  461 ;  Marryatts  v.  White,  2  Stark.  102  ;  Newmarcli 
t\  Clay,  14  East,  244;  Simson  v.  logham,  2  B.  &  C.  72  ;  Merriman  v.  Ward, 
IJ.  &  H.  371. 


MAXIM  LXXV. 


Qui  facit  per  alinm  facit  per  se :  (Co.  Litt.  258.) 
He  who  does  anything  by  another  does  it  by  himself. 
Or,  Qui  per  alium  facit,  per  seipsum  facere  videtur. 
He  who  by  another  does  anything  is  himself  considered 
to  have  done  it. 

THIS  maxim  has  reference  to  the  law  of  principal  and  agent, 
and  under  it  a  principal  is  responsible  for  the  acts  of  his 
agent ;  as,  where  B.  employs  A.  to  buy  goods  for  him,  B.  is  lia- 
ble in  an  action  for  the  amount ;  or  to  sell  goods,  A.'s  receipt, 
though  he  subsequently  misapply  the  money,  will  discharge 
the  purchaser.  Many  nice  distinctions  arise  in  practice  under 
this  maxim,  in  applying  it  to  the  characters  of  principal  and 
agent,  and  in  considering  the  various  rights  and  liabilities  of 
principal  and  agent  with  reference  to  third  parties  ;  and  also  in 
applying  the  character  of  principal  and  agent  to  the  relation  of 
master  and  servant,  husband  and  wife,  parent  and  child,  attor- 
ney and  client,  bankers,  auctioneers,  partners,  &c. 

If  a  servant  do  what  his  master  ought  to  do,  it  is  the  same 
as  though  the  master  did  it  himself  ;  and  if  a  servant  do  any 
such  thing  without  the  consent  of  the  master,  yet,  if  the  mas- 
ter subsequently  ratify  the  act  of  the  servant,  it  is  sufficient : 
"  Omnis  enim  ratihabitio  retrotraliitur,  et  mandato  sequipa- 
ratur." 

So  the  act  of  the  agent  is  the  act  of  the  principal  for  every- 
thing done  within  the  scope  of  his  authority.  The  agent's  re- 
ceipt for  money  will  charge  his  principal.  His  payment  will 
discharge  his  principal.  A  tender  to  him  of  money  or  goods 
on  sale,  or  a  tender  by  him  as  agent  for  another,  is  good.  So 
a  tender  of  money  to  a  clerk  or  servant  having  a  general  au- 
thority to  receive  money  for  his  employers,  is  a  good  tender  to 
the  latter.     A  tender  to  an  executor  who  has  not  then  proved 


166  LEGAL    MAXIMS. 

the  will,  if  lie  afterwards  prove,  is  a  good  tender  to  him  as  ex- 
ecutor. And  a  tender  of  a  debt  to  an  attorney  authorized  tO' 
receive  it,  or  to  any  one  in  his  office  on  a  day  named,  on  a  de- 
mand by  him  by  letter,  is  a  good  tender  to  the  creditor. 

The  contract  of  an  agent  will  bind  his  principal  in  purchase^ 
or  sale :  payment  to  an  auctioneer  is  payment  to  the  vendor. 
The  delivery  of  goods  to  a  carrier's  servant,  or  agent  collecting- 
goods  for  carriage  by  the  carrier,  is  a  delivery  to  the  carrier. 
One  railway  company  is  the  agent  to  bind  another  in  carrying 
over  various  lines  of  railway  of  passengers  or  goods  in  one  en- 
tire contract ;  and  so  it  has  been  frequently  held. 

The  question  in  all  cases  of  principal  and  agent,  in  which 
the  plaintiff  seeks  to  fix  the  defendant  with  liability  upon  a 
contract,  express  or  implied,  is  stated  to  be,  whether  or  not 
such  contract  was  made  by  the  defendant,  by  himself  or  his 
agent,  with  the  plaintiff  or  his  agent ;  and  this  is  a  question  of 
fact  for  the  jury  upon  the  evidence.  The  plaintiff,  on  whom 
the  burden  of  proof  lies  in  all  tliese  cases,  must,  in  order  to  re- 
cover, show  that  the  defendant  contracted  expressly  or  implied- 
ly ;  expressly,  by  making  a  contract  with  the  plaintiff  ;  implied- 
ly, by  giving  an  order  to  him  under  such  circumstances  as  show 
that  it  was  not  to  be  gratuitously  executed ;  and  if  the  contract 
was  not  made  by  the  defendant  personally,  then,  that  it  was 
made  by  his  agent  properly  authorized,  and  as  his  contract. 

This  maxim  does  not,  however,  apply  to  the  acts  of  an  agent 
of  an  agent ;  in  which  case  the  maxim,  "  Delegatus  non  potest 
delegare,"  applies. 


Co.  Litt.  258;  2  Inst.  597;  1  Stra.  228  ;  Dawes  v.  Peck,  8  T.  R.  830; 
Pickford  v.  Grand  Junction  Railway  Company,  12  M.  &  W.  766  ;  Bostock 
v.  Hume,  8  Scott  N".  R.  590  ;  Reynell  v.  Lewis,  8  Scott  N.  R.  830 ;  Heald 
V.  Kenworthy,  10  Exch.  739 ;  Sykes  v.  Giles,  5  M.  &  W.  645  ;  Parrott  v. 
Anderson,  7  Exch.  93;  Mackersy  v.  Ramsays,  9  CI.  &  F.  818;  Marsh  v^ 
Keating,  2  CI.  &  F.  250  ;  Moffatt  v.  Parsons,  5  Taunt.  308  ;  Miles  v.  Bough, 
3  Q.  B.  845;  Walsh  v.  South  work,  6  Exch.  150;  Dresser  v.  Norwood,  11 
L.  T.  (N.  S.)  111. 


MAXIM  LXXVI. 


Qui  liceret  in  litera  hceret  in  cortice  :  (Co.  Litt.  289.) 

He  who  sticks  to  the  letter  sticks  to  the  bark ;  or,  He 

who  considers  the  letter  merely  of  ao  instrument 

cannot  comprehend  its  meaning. 

ALL  old  law  writers,  and  who  are,  in  fact,  the  makers  of  law 
maxims,  say,  that  reason  is  law,  and  that  without  reason 
there  is  no  law  ;  and  that  that  which  is  contrary  to  reason  is 
contrary  to  law.  So,  the  meaning  of  this  maxim  is,  that  to  un- 
derstand the  letter  of  the  law  the  reason  of  it  must  be  known  ; 
and  to  judge  of  the  letter  only  of  a  document,  Mathout  know- 
ing the  reason  of  it,  is  but  to  have  a  superficial  knowledge  of 
its  meaning  ;  and  in  all  cases  where  it  can,  without  infringing 
upon  other  more  important  rules,  this  rule  will  be  applied. 

The  construction  of  deeds  must  be  reasonable  and  agree- 
able to  common  understanding ;  and  where  the  intention  is 
clear,  too  much  stress  must  not  be  laid  upon  the  precise  signi- 
fication of  the  words  :  "  Quoties  in  verbis  nulla  est  ambiguitas, 
ibi  nulla  expositio  contra  verba  fienda  est."  Thus  a  lessee  is 
not  liable  for  a  breach  of  covenant  to  repair  committed  before 
the  execution  of  the  lease  by  the  lessor,  though  subsequently 
to  the  day  from  which  the  habendum  states  the  term  to  com- 
mence. On  the  other  hand,  where  by  an  agreement  under 
seal  for  a  lease  of  copyholds,  to  be  granted  so  soon  as  a  license 
could  be  obtained  from  the  lord  of  the  manor,  the  defendant 
covenanted  that  he  would  from  time  to  time,  during  the  term 
to  be  granted  as  aforesaid,  kee23  the  premises  in  repair ;  and 
the  defendant  entered  and  occupied  during  tlie  term  agreed  to 
be  granted ;  he  was  held  liable  to  repair  according  to  the 
agreement,  though  no  lease  had  been  made  to  him,  nor  license 
obtained  from  the  lord.  Again,  in  an  action  of  trover,  where 
the  defendant  sought  to  stay  further  proceedings  upon  bring- 


168  LEGAL    MAXIMS. 

ing  the  specific  goods  into  court,  and  upon  pajonent  of  costs  ; 
and  where  it  was  objected  bj  the  plaintiff  that  that  could  not 
be,  inasmuch  as  the  court  did.not  keep  a  warehouse  ;  the  court 
said  that  a  warehouse  had  nothing  to  do  with  ordering  the 
thing  to  be  delivered  to  the  plaintiff ;  that  money  paid  into 
court  was  payment  to  the  plaintiff,  and  that  the  reason  and 
spirit  of  cases  made  the  law,  not  the  letter  of  particular  pre- 
cedents. 

Under  a  deed  of  arrangement  in  bankruptcy,  where  a  com- 
position was  to  be  paid  in  cash  and  in  promissory  notes,  but 
some  of  the  creditors  had  been  paid  all  cash,  and  it  was  ob- 
jected that  such  a  departure  from  the  terms  of  the  deed  ren- 
dered it  inoperative  against  non-assenting  creditors  ;  it  was  held 
that  such  was  not  the  case,  and  that  payment  in  advance  ren- 
dered payment  in  notes  useless ;  and  it  was  observed  that,  in 
the  absence  of  fraud,  a  release  by  one  of  the  creditors  of  his 
installment  would  be  a  compliance  with  the  terms  of  the  com- 
position ;  the  contrary  conclusion  being  absurd,  the  main  ob- 
ject of  the  deed  being  payment  of  the  creditors,  and  they  being 
satisfied,  the  detail  might  be  treated  as  immaterial. 

The  rule,  "  Mala  grammatica  non  vitiat  chartem,"  and 
others  of  a  like  nature,  may  with  propriety  be  considered  in 
connection  with  this  maxim  ;  in  the  apj)lication  of  which  it 
was  held,  that,  where  a  bill  of  sale  was  made  by  I.  D.  on  the 
29th  June,  wherein  the  maker  was  described  as  "  gentleman," 
and  who  on  the  3d  July  commenced  business  as  an  agent,  and 
continued  so  until  after  the  16th  July,  the  day  when  the  bill 
of  sale  was  filed,  the  affidavit  verifying  the  bill  of  sale  bearing 
date  the  same  day,  the  maker  being  therein  described  as  "  the 
said  I.  D.  is  a  gentleman  ; "  this  variance  did  not  vitiate  the 
bill  of  sale. 


Co.  Litt.  147,  223,  289;  2  Saund.  157;  Hob.  27;  Shepp.  Touch.  87; 
Burr.  1364;  R.  v.  Hall,  1  B.  &C.  128  ;  Williams  v.  Crosling,  3  C.  B.  902; 
Shaw  V.  Kay,  1  Exch.  412;  Pistor  v.  Cutor,  9  M.  &  W.  315 ;  Pittman  ®. 
Sutton,  9  C.  &  P.  706  ;  Burgess  v.  Boetefeur,  7  M.  &  G.  494  ;  Naylor  v. 
Mortimore,  10  L.  T.  (N.  S.)  903  ;  The  London  and  W.  L.  &  D.  Co.  v. 
Chace,  6  L.  T.  (N.  S.)  781 ;  Evans  v.  Robins,  11  L.  T.  (N.  S.)  211. 


MAXIM  LXXVII. 


Qiiijiissu  jiidicis  aliquod  fecerit  non  videtur  dolo  malo  fecisse, 

quia  parere  necesse  est :  (10  Co.  76.) 
He  who  does  anything  by  command  of  a  judge  will  not 

be  supposed  to  have  acted  from  an  improper  motive, 

because  it  was  necessary  to  obey. 

T  is  under  this  rule  that  an  officer  is  protected  in  the  execu- 
tion of  any  process  issuing  from  a  court  or  judge  of  com- 
petent jurisdiction.  But  it  may  be  stated,  that  where  the 
court  or  judge  has  not  jurisdiction,  or  the  matter  adjudicated 
upon  is  not  within  such  jurisdiction,  in  that  case  the  officer  is 
not  so  protected,  excepting  in  the  case  of  a  constable,  &c.,  law- 
fully acting  under  warrant  of  a  justice  of  the  peace,  who  is  in 
such  case  protected  by  express  statutory  enactment. 

The  rule  as  to  judges  and  judicial  officers  is,  that  they  are 
not  liable  for  injury  caused  by  the  due  exercise  of  their  judicial 
functions,  even  though  done  in  error  or  mistake  of  judgment ; 
but  it  is  otherwise  where  they  act  beyond  the  limit  of  their  au- 
thority. And  so,  also,  ministerial  officers  acting  under  judicial 
authority  are  exempt  from  liability  for  the  consequences. 

If  a  ministerial  officer  of  a  court  take  upon  himseK  the 
exercise  of  judicial  functions,  as  to  issue  a  judicial  order,  he  is 
liable  for  all  the  consequences  resulting  from  the  carrying  such 
order  into  effect ;  for  the  judicial  authority  cannot  be  dele- 
gated. But  if  such  order  is  prima  facie  issued  with  proper 
judicial  authority,  the  mere  ministerial  officer  who  hona  fide 
receives  the  warrant  to  execute,  and  does  so  execute  it,  is  not 
responsible  for  what  is  done  under  it. 

A  sheriff  is  protected  in  the  proper  execution  of  all  writs 
directed  to  him ;  but  if  he  execute  them  in  a  manner  not 
justified  by  the  law,  he  will  be  liable  in  damages.  For  instance, 
if  he  has  acted  under  a  genuine  writ  issued  from  one  of  the 


ITO  LEGAL    MAXIMS. 

superior  courts,  he  and  Lis  officers  acting  under  him  are  jiro- 
tected  by  it,  thougli  it  be  irregular  on  the  face  of  it ;  as  a 
capias  against  a  peeress,  or,  ofie  void  in  form  ;  as  a  capias  not 
properly  returnable.  For,  it  is  not  their  duty  to  examine  the 
judicial  act  of  the  court,  nor  to  exercise  their  judgment  as  to 
the  validity  of  the  process  in  point  of  law  ;  but  they  are  bound 
to  execute  it,  and  are  tlierefore  protected  by  it. 

So  where  one  was  in  prison  upon  a  ca.  sa.  in  an  action  for 
an  assault  and  false  imprisonment,  and,  petitioning  the  Court 
of  Bankruptcy,  was  discharged  by  order  of  the  commissioner ; 
in  an  action  against  the  keejser  of  the  prison  for  an  escape ;  it 
was  held  that,  whether  or  not  that  was  a  debt  from  which  the 
commissioner  had  power  to  discharge  the  prisoner,  yet  the  de- 
fendant was  protected,  being  bound  to  obey  the  order  of  the 
commissioner,  who  was  acting  judicially  in  a  matter  over  which 
he  had  jurisdiction. 

But  it  is  otherwise  where  a  ministerial  officer  acts  in  execu- 
tion of  an  authority  not  honafide^  or  under  an  order  of  a  judge 
assumed  without  jurisdiction.  For,  if  the  process  under  which 
a  sheriff  or  his  officers  act  in  taking  in  execution  the  body  or 
goods  is  forged  or  feigned,  it  is  not  the  order  of  the  court ;  it 
is  a  nullity,  and  they  derive  no  protection  from  it.  So,  if  a 
commissioner  in  bankruptcy  wrongfully  order  the  imprison- 
ment of  a  debtor,  he  having  no  jurisdiction,  the  messenger 
executing  the  order  will  be  assumed  to  know  of  such  want  of 
jurisdiction,  and  will  be  liable  in  an  action  for  the  false  im- 
prisonment. But  a  genuine  writ,  thougli  irregular,  is  always 
a  justification  to  the  sheriff  and  his  officers,  who  had  no  option 
but  to  obey. 


6  Co.  54;  10  Co.  76;  Jones  v.  Williams,  8  M.  &  W.  356;  Kiddell  v. 
Pakeman,  3  C.  M.  &  R.  33;  Hooper  v.  Lane,  10  Q.  B.  561  ;  Ferguson  «. 
Earl  Kinnoul,  9  CI.  &  F.  290;  Doswell  v.  Imjjey,  1  B.  &  C.  169;  Andrews 
V.  Harris,  1  Q.  B.  3  ;  Watson  v.  Bodell,  14  M.  &  W.  57 ;  Thomas  ».  Hud- 
son, 16  M.  &  W.  885;  Gossett  v.  Howard,  10  Q.  B.  411  ;  Prentice  v.  Har- 
rison, 4  Q.  B.  853;  Jones  v.  Jones,  11  L.  T.  (N.  S.)  173. 


MAXIM   LXXVIII. 


Quilibet  potest  remmciare  juri  pro  se  introducto  :  (2  Inst. 

183.) 
Every  one  is  able  to  renounce  a  right  introduced  for 

himself. 

THIS  maxim  must  be  understood  as  applicable  to  the  party 
himself  having  the  right,  and  not  to  third  parties;  for 
no  one  will  be  permitted  to  renounce  a  right  in  which  others 
are  interested,  to  their  prejudice  ;  ex.  gr.,  the  waiver  of  notice 
of  dishonor  of  a  bill  by  one  indorser  will  not  prejudice  the 
right  to  notice  of  the  subsequent  indorsers.  But  he  may  re- 
nounce a  right  given  to  him  alone,  whether  by  act  of  law  or  of 
parties ;  as  to  waive  his  defense  to  a  claim  under  plea  of  in- 
fancy, or  the  statute  of  limitations ;  or  to  give  up  any  private 
rights  or  privileges  he  may  have,  either  for  the  benefit  of  indi- 
viduals or  of  the  public ;  as  by  giving  up  his  right  to  compel 
the  specific  performance  of  a  contract,  or  to  give  the  public  a 
right  of  way  over  his  lands.  He  may,  however,  in  certain 
cases,  refuse  to  take  advantage  of  the  right  the  law  gives  to 
him,  even  to  the  prejudice  of  others ;  as  in  the  case  of  an  ex- 
ecutor, refusing  to  take  advantage  of  the  statute  of  limitations, 
to  the  j)rejudice  of  the  legatees. 

If  a  promise  to  pay  the  debt  of  another  be  conditional,  the 
promisor  may  waive  the  condition.  But  where,  in  an  action  on 
a  guaranty  by  A.  to  pay  B.  the  debt  of  C.  on  condition  of  a 
stay  of  proceedings  by  B.,  the  guaranty  to  be  void  if  satisfac- 
tory references  were  not  given  within  a  week  by  A.  of  his 
ability  to  pay  the  debt ;  it  was  held  that,  though  B.  might 
waive  the  stipulation  as  to  satisfactory  references,  it  being  a 
condition  inserted  for  liis  benefit,  yet,  he  could  not  enforce  the 
guaranty  against  A.  until  he  liad  given  him  notice  of  the 
waiver. 


172  LEGAL     MAXIMS. 

Within  this  rule  may  be  classed  all  cases  of  waiver  of  con- 
ditions precedent  in  contracts,  times  and  modes  of  their  per- 
formance, &c.  Where  the  owner  of  a  ship  charters  it  to  sail 
for  a  foreign  port  on  a  certain  day  to  bring  back  a  cargo,  the 
sailing  of  the  vessel  at  the  time  appointed  may  be  so  far  of  the 
essence  of  the  contract  as  that  the  charterer  will  not  be  bound 
to  provide  the  cargo  unless  the  vessel  sail  at  the  appointed 
time ;  but,  though  the  vessel  sail  after  the  time,  if  the  char- 
terer ship  the  cargo,  the  time  of  the  ship  sailing  is  no  longer  of 
the  essence  of  the  contract,  and  he  cannot  refuse  to  pay  the 
freight  and  fulfill  his  part  of  the  agreement  because  the  ship 
did  not  sail  on  the  exact  day  specified.  So,  if  a  ship  be  char- 
tered to  be  at  a  particular  port,  on  a  day  certain,  to  take  in  a 
cargo,  the  charterer  may  not  be  bound  by  his  agreement  to 
ship  a  cargo  and  pay  the  freight  if  the  ship  be  not  ready  at  the 
place  and  time  mentioned ;  but  if  after  the  time  named  the 
■cargo  is  shipped,  this  is  a  waiver  of  the  condition  precedent  to 
the  payment  of  the  freight. 

If  a  notice  to  quit  be  directed  to  a  tenant  by  the  wrong 
Christian  name,  or  other  informality,  and  he  neglect  to  repu- 
diate it,  he  will  be  deemed  to  have  waived  the  irregularity. 
So,  if  a  landlord  receives  rent  due  subsequently  to  the  expira- 
tion of  the  notice,  this  is  a  waiver  of  the  notice  and  creation 
of  a  new  tenancy.  Accej^tance  of  rent  accruing  due  after  a 
forfeiture  is  a  waiver  of  the  forfeiture,  if  the  lessor  at  the  time 
of  receipt  of  the  rent  had  notice  of  breach  of  the  condition 
creatine:  the  forfeiture.  A  defendant  in  an  action  in  a  court 
not  having  jurisdiction  appearing  and  submitting  to  the  juris- 
diction, cannot  afterwards  object  to  the  verdict  on  the  ground 
of  want  of  jurisdiction. 


2  Inst.  183;  Co.  I.itt.  223 ;  10  Co.  101;  Shepp.  Toiicb.  130;  Goodright 
v.  Cordwent,  6  T.  R.  219  ;  Blythe  v.  Dennett,  13  C.  B.  178;  Steele  v.  Har- 
mer,  14  M.  &  W.  831 ;  Hart  v.  Pendergast,  14  M.  &  W.  743;  Doe  v.  Bat- 
ten, Cowp.  243;  Isherwood  ?).  Oldknow,  3  M.  &  S.  392;  Storer  v.  Gordon, 
3  M.  &  S.  308 ;  Fothergill  v.  Walton,  8  Taunt.  576 ;  Morton  v.  Marshall,  8 
L.  T.  (N.  S.)  462;  Stavers  v.  Curling,  3  Sc.  740;  Denby  w.NichoU,  4  C.  B. 
(K  S.)  376;  Cotesworth  v.  Spokes,  30  L.  J.  221,  C.  P. 


MAXIM  LXXIX. 


Qui  prior  est  tempore  potior  est  jure  :  (Co.  Litt.  14.) 

He  who  is  first  in  time  lias  the  stroiicrest  claim  in  law. 


'&' 


THIS  maxim  relates  to  property,  and  is  used  in  determining 
the  rights  of  parties  thereto.  Generally,  it  may  be  said  to 
apply  to  the  first  occupant  of  land,  or  the  first  possessor  of  a 
chattel  lost  or  abandoned ;  to  the  heir  who  takes  by  descent ; 
the  inventor  of  something  new,  &c.  Its  particular  application 
in  practice,  however,  is  with  respect  to  real  property,  between 
legal  and  equitable  claims  of  several  incumbrancers  and  pur- 
chasers, as  to  who  has  the  prior  right  and  consequently  the 
better  title. 

The  maxim  is  also  well  illustrated  by  all  those  cases  in 
which  one  creditor,  by  using  diligence,  obtains  a  satisfaction  of 
his  claim  in  priority  to  another  of  equal  right ;  a  simple  in- 
stance of  which  is,  where  two  writs  of  Jl.  fa.  are  delivered  to 
the  sheriff,  the  one  first  delivered  must  be  first  satisfied. 

The  law  is  said  to  prefer  a  sure  and  constant  right,  though 
it  be  little,  to  a  great  estate  by  wrong,  and  defeasible ;  and 
therefore  the  first  and  more  ancient  is  the  more  sure  and 
wortliy  title :  "  Quod  prius  est  verus  est ;  et,  quod  prius  est 
tempore  potius  est  jure." 

The  law  of  descents  whereby  the  eldest  amongst  males  of 
equal  degrees  of  consanguinity,  as  being  first  in  time  and  more 
worthy,  are  preferred  to  the  younger,  is  regulated  by  this 
maxim.  So_  is  the  law  of  escheat ;  as,  where  the  owner  of 
land  dies  intestate  and  without  heir,  such  land  vests  either  in 
the  crown  or  in  the  lord  by  escheat ;  and  so  as  to  undisposed 
of  personal  property,  the  intestate  leaving  no  next  of  kin, 
which  vests  in  the  crown.  For,  all  estates  being  supposed  to 
have  been  granted  by  the  lord  paramount,  in  the  absence  of 


1T4  LEGAL    MAXIMS. 

title  in  any  other  claimant,  the  property  vests  in  the  lord  para- 
mount as  in  his  first  estate. 

The  equitable  rule  as  to  the  priority  of  incumbrancers  upon 
real  or  personal  property  may  be  properly  referred  to  as  illus- 
trating the  maxim  under  consideration.  As,  where  there  have 
been  several  assignments  of  a  reversionary  interest  in  the  same 
stock,  the  one  first  in  point  of  time  and  notice  will  be  entitled 
to  the  fund.  So  where  there  are  several  mortgagees  of  one 
estate,  and  the  legal  estate  outstanding,  the  first  in  point  of 
time  is  to  be  preferred ;  but  where  one  of  them  has  the  legal 
estate,  he  is  preferred.  "Where,  therefore,  there  are  three  mort- 
gagees of  one  estate,  the  first  having  the  legal  estate,  and  the 
third  in  point  of  time  pays  off  the  first,  and  thereby  acquires 
the  legal  estate,  he  obtains  priority  for  both  first  and  third 
mortgages  over  the  second ;  for,  where  the  equities  are  equal 
the  law  will  prevail. 

A  simple  instance,  of  daily  occurrence  in  similar  cases,  may 
be  used  in  further  illustration  of  this  rule : — Plaintiff  found  on 
the  floor  of  the  defendant's  shop  a  small  parcel  containing 
bank  notes,  which  he  handed  to  the  defendant,  requesting  him 
to  keep  them  with  a  view  to  finding  the  owner.  The  defend- 
ant accordingly  advertised  for  the  owner ;  but,  none  appearing, 
after  a  lapse  of  three  years  plaintiff  demanded  the  notes  back 
upon  paying  defendant  the  costs  of  advertisements  and  giving 
him  an  indemnity ;  and  the  defendant  having  refused :  it  was 
held  that  the  plaintiff  was  entitled  to  have  them  handed  over 
to  him,  and  this  notwithstanding  they  were  found  in  defend- 
ant's shop.  For,  the  finder  of  a  chattel,  though  thereby  he 
does  not  acquire  the  absolute  ownership  of  the  thing  found, 
does,  nevertheless,  acquire  a  right  thereto  as  against  all  but  the 
owner. 


Co.  Litt.  14,  347 ;  2  Bla.  Com. ;  Brace  v.  D.  of  Marlborough,  2  P.  Wms. 
491;  Armory  v.  Dclamirie,  1  Stra.  504;  Willoughby  v.  Willoughby,  1  T. 
R.  763;  Hutchinson  v.  Johnston,  1  T.  R.  131  ;  Drewe  i;.  J^uison,  11  A.  & 
E.  529 ;  Robson  r.  Attorney  General,  10  CI.  &  F.  497 ;  Bridges  v.  Hawks- 
worth,  21  L.  J.  75,  Q.  B. ;  Jeffreys  v.  Boosey,  4  H.  L.  Cas.  815;  Hutton  v. 
Cooper,  6  Exch.  159;  Hernaman  v.  Bowker,  11  Exch.  760;  Imray  v.  Mag- 
uay,  11  M.  &  W.  267;  Shattuck  ».  Garden,  6  Exch.  725 ;  Hopkins  ». 
Clarke,  11  L.  T.  (N.  S.)  201 


MAXIM  LXXX. 


'Qui  seniit  commodum,  sentire  debet  et  onus;  et  h  contra: 
(1  Co.  99.) 

He  who  enjoys  the  benefit  ought  also  to  bear  the  bur- 
den ;  and  the  contrary. 

THE  liability  of  a  railway  company  to  pro^dde  sufficient 
accommodation  for  passenger  and  goods  traffic,  and  to 
indemnify  against  loss  or  damage  by  negligence,  in  return  for 
the  exclusive  right  of  way  and  tolls  thereupon :  as,  also,  all 
other  instances  where  rights  are  conferred  upon  individuals  or 
bodies  of  persons  as  against  the  pubhc ;  as,  public  companies 
having  powers  under  Acts  of  Parliament,  partners  in  trade, 
attorneys,  surveyors,  innkeepers,  i^awnbrokers,  &c. :  are  within 
the  meaning  of  this  maxim.  And  also  where  the  pubhc  are 
not  directly  concerned ;  as,  in  rights  and  liabilities  arising  out 
of  the  relation  of  lessor  and  lessee,  landlord  and  tenant,  hus- 
band and  wife,  master  and  servant,  jirincipal  and  agent,  execu- 
tor, devisee,  &c. ;  in  all  which  cases,  to  the  privileges  conferred 
by  the  law,  the  law  attaches  corresponding  liability. 

The  converse  of  the  position  first  stated,  viz.,  that  he  who 
bears  the  burden  has  a  right  to  the  benefit,  may  be  deduced 
from  the  instances  already  given,  as  well  as  from  the  general 
principle  of  the  law,  which  holds  that  no  burden  is  thereby 
imposed  without  a  corresponding  benefit. 

Real  property  is  a  leading  object  in  the  consideration  of 
this  maxim,  it  being  a  common  rule  that  all  land,  in  passing 
from  one  owner  to  another,  takes  with  it  the  burdens  which 
the  previous  owners  have  thought  fit  to  lay  upon  it,  and  the 
conditions  to  which  it  was,  in  passing  from  their  hands,  sub- 
ject, whether  or  not  they  are  implied  covenants  running  with 
the  land,  or  express,  binding  the  covenantor  and  his  assigns. 

If  an  indenture  be  made  between  A.  of  the  one  jjart,  and  B. 


176  LEGAL    MAXIMS. 

and  C.  of  the  other  part,  and  therein  a  lease  is  made  bj  A.  to 
B,  and  C.  on  certain  conditions,  and  B.  and  C.  are  thereby 
bound  to  A.  in  20^.  to  perform  the  conditions,  and  B.  only  and 
not  C.  executes  the  deed  ;  yet,  if  C.  accept  the  estate,  he  is 
bound  by  the  covenants ;  and  one  of  them  cannot  be  sued  with- 
out the  other  whilst  both  are  living ;  for,  "  Qui  sentit  commo- 
dum  sentire  debet  et  onus ;  et  transit  terra  cum  onere." 

The  law  of  landlord  and  tenant,  and  of  lessor  and  lessee, 
furnishes  many  instances  of  the  application  of  this  maxim.  As, 
where  one  leased  a  house  by  indenture  for  years,  the  lessee 
covenanting  for  himself  and  his  executors  to  repair  at  all  times 
needful;  the  lessee  having  assigned  it  over  to  another,  who 
suffered  it  to  decay,  it  was  held,  in  an  action  of  covenant  by 
the  lessor  against  the  assignee,  that  such  action  would  lie,  al- 
though the  lessee  had  not  co^nanted  for  his  assignee ;  because, 
that  such  covenant  extending  to  the  support  of  the  thing  de- 
mised, is  quodammodo  appurtenant  to  it,  and  goes  with  it ;  and 
because,  the  lessee  having  undertaken  to  repair,  the  rent  was 
the  less,  which  was  to  the  benefit  of  the  assignee ;  "  et,  qui 
sentit  commodum,  sentire  debet  et  onus." 

A  devise  or  bequest  subject  to  the  payment  thereon  of  an 
annuity  or  certain  sum,  carries  with  it  an  obligation  to  make 
the  payment,  and  the  thing  devised  stands  charged  with  the 
annuity  or  sum  payable,  and  cannot  be  accepted  otherwise ; 
and  where  the  devise  is  of  a  thing  of  less  value  than  that  with 
which  it  is  charged,  the  devisee  accepting  the  gift  must  dis- 
charge the  burden. 


Shepp.  Touch.  178;  2  Inst.  489  ;  1  Co.  99;  5  Co.  24;  8  Co.  32  ;  Co. 
Litt.  231  ;  Tremeere  v.  Morrison,  1  Biug.  N.  C.  98  ;  Messenger  v.  Andrews, 
4  Russ.  478 ;  Bullock  v.  Dommitt,  6  T.  R.  650 ;  2  Wms.  Saund.  422 ;  Bel- 
four  V.  Weston,  1  T.  R.  310;  Parker  v.  Gibbons,  1  Q,  B.  421  ;  Weigall  v. 
Waters,  6  T.  R.  488;  R.  v.  Inhabitants  of  Kent,  13  East,  220;  Digby  v. 
Atkinson,  4  Camp.  275  ;  Mayor  of  Lyme  Regis  v.  Henley,  1  Bing.  N.  C.  222 ; 
Nichol  V.  Allen,  1  B.  &  S.  916. 


MAXIM  LXXXI. 


Quod  db  initio  non  valet,  in  tractu  temporls  non  convalescit : 
(4  Co.  2.) 

That  whicli  is  bad  from  the  beginning  does  not  imijrove 
by  length  of  time. 

W HEIST  the  consideration  for  a  deed  is  illegal,  no  lapse  of 
time  can  cure  the  defect.  In  nullities  in  pleadings  also, 
and  in  transactions  founded  upon  fraud,  it  may  be  stated  gen- 
erally that  lapse  of  time  will  not  avail  to  cure  the  defect.  But 
there  are  cases  under  the  statutes  of  limitations,  where  a  de- 
feasible title  may  become  indefeasible  by  lapse  of  time,  and  to 
which  this  rule  cannot  be  said  strictly  to  apply. 

Lapse  of  time,  and  the  altered  state  of  circumstances  conse- 
quent upon  it,  and  which  are  the  natural  result  of  the  act  done, 
will  frequently  make  that  legal  which  before  was  not  so  ;  and 
this  sacrifice  society  often  demands  at  the  hands  of  the  law. 

If  a  man,  seized  of  land  in  fee,  make  a  lease  for  twenty-one 
years,. rendering  rent,  to  begin  presently,  and  afterwards,  the 
same  day,  he  make  a  lease  to  another  for  the  like  term,  the 
second  lease  is  void.  And  if  the  first  lessee  surrender  his  term 
to  the  lessor,  or  commit  any  act  of  forfeiture  of  his  lease,  the 
second  lessee  shall  not  have  his  term  ;  for  the  lessor  at  the 
time  of  making  the  second  lease  had  nothing  in  him  but  the 
reversion.  If  a  bishop  make  a  lease  for  four  lives,  contrary  to 
a  statute  which  authorizes  a  lease  for  three,  and  though  one  of 
them  die  in  the  lifetime  of  tlie  bishop,  so  that  there  be  then 
but  three,  and  afterwards  the  bishop  dies,  yet  the  lease  shall 
not  bind  his  successor  ;  for  those  things  which  have  a  bad  be- 
ginning cannot  be  brought  to  a  good  end. 

Where  a  lease  is  made  for  life,  remainder  to  the  corporation 
of  B.,  there  not  being  any  such  corporation  ;  it  is  void,  though 
such  a  corporation  be  subsequently  created  during  the  particu- 


178  LEGAL    MAXIMS. 

lar  estate.  So  a  remainder  limited  to  A.  the  son  of  B.,  lie  hav- 
ing no  such  son ;  and  afterwards  a  son  is  born  to  him  during 
the  particular  estate,  whose  name  is  A.,  yet  it  is  void. 

The  will  of  a  feme  covert^  not  acting  under  a  power ;  or  of 
an  infant,  is  void,  and  is  not  rendered  available  on  the  deter- 
mination of  the  coverture  of  they^m^,  or  the  attaining  full  age 
of  the  infant,  without  fresh  execution.  IS^o  interest,  legal  or 
equitable,  passes  to  the  holder  of  a  forged  bill  of  exchange  as 
against  the  person  whose  name  has  been  forged  ;  and  this  doc- 
trine applies  to  all  deeds  and  other  instruments  whatsoever, 
and  into  whosesoever  hands  they  subsequently  pass. 

A  verdict  given  in  an  action  wliere  no  sufficient  cause  of 
action  to  support  the  verdict  appears  upon  the  record,  may  be 
set  aside. 

The  maxim,  "  Quod  non  habet  princii)ium  non  habet  finem" 
— That  which  has  no  beginning  has  no  end,  may  be  considered 
as  connected  with  the  one  under  consideration.  To  give  the 
ordinary  a  right  to  present  to  a  benefice  by  lapse,  he  must,  in 
such  cases  as  the  following,  give  notice  to  the  patron,  or  no 
lapse  will  accrue,  viz. :  resignation,  deprivation,  refusal  to  in- 
stitute for  default  of  learning,  &c.  ;  voidance,  under  1  &  2 
Yict.  c.  106,  s.  58  ;  trading,  &c.  :  in  the  absence  of  such  notice, 
he  cannot  take  advantage  by  way  of  lapse.  So,  no  lapse  having 
accrued  to  the  ordinary,  none  can  accrue  to  the  metropolitan, 
or  to  the  crown,  who  take  in  default  of  Imn,  they  being  in  no 
better  position  than  the  ordinary  ;  but  each  must  suffer  by  his 
default :  for,  "  Quod  non  habet  principium  non  habet  finem." 


4  Co  2,61;  Noy  Max.  p.  15;  2  BI.  Coin.;  2  Inst.  632;  Plow.  432; 
Swinb.  88;  2  P.  Wms.  624;  Doder.  Eng.  Law,  233;  Dawson  v.  Prince,  30 
L.  T.  60;  Pennington  ».  Tanniere,  13  Q.  B.  998;  Prole  ».  Wiggins,  3  Bing. 
N.  C.  230;  Wetherell  v.  Jones,  3  B.  &  Ad.  225  ;  Wright  v.  Tallis,  1  C.  B. 
893  ;  Davies  dem.  Lowndes,  8  Scott  N.  R.  567  ;  Jackson  v.  Pesked,  1  M.  & 
S.  234 ;  Goodtitle  v.  Gibbs,  5  B.  &  C.  714 ;  Bryan  v.  Banks,  4  B.  &  Aid. 401. 


MAXIM   LXXXII. 


Quod  remedio  destituitur  ii)sd  re  valit  si  ciilfpa  absit :  (Bac. 

Max.  Eeg.  9.) 
That  which  is  without  remedy  avails  of  itself  if  without 

fault. 

WHERE  the  law  does  not  provide  an  express  remedy  for 
an  injury,  it  works  one  impliedly,  by  operation  of  law. 

It  has  been  said,  that  if  a  man  seized  of  a  manor,  part  of 
which  is  in  lease  for  life,  and  part  for  years,  and  he  levy  a  fine 
to  A.  to  the  use  of  B.  in  tail,  with  divers  remainders  over,  in 
that  case  B.  shall  avow  for  the  rent,  or  have  an  action  of  waste 
without  attornment ;  for  that  when  the  reversion  is  settled  in 
any  one  in  judgment  of  law  and  he  hath  not  a  possible  mean 
to  compel  the  tenant  to  attorn,  and  no  laches  or  default  is  in 
him,  there  he  shall  avow  and  have  an  action  of  waste  without 
attornment,  for  the  rule  is  "  quod  remedio  destituitur,"  &c. 
Attornments  are  now,  however,  rendered  unnecessary  by  the 
4  Anne,  c.  16,  which  enacts  that  all  grants  and  conveyances  of 
manors,  lands,  rents,  reversions,  &c.  shall  be  good  without  the 
attornment  of  the  tenants ;  and  an  assignee  of  the  reversion, 
whether  by  way  of  mortgage  or  otherwise,  may  sue  for  the 
rent  or  distrain  without  any  attornment. 

When  a  creditor  is  made  executor,  though  he  has  lost  his 
remedy  by  action  for  his  debt  upon  the  principle  that  a  man 
cannot  be  at  the  same  time  plaintiff  and  defendant,  he  is 
nevertheless  permitted  to  retain  the  amount  due  to  him  out  of 
the  moneys  of  his  debtor,  the  testator,  come  to  his  hands  ;  and 
that  by  operation  of  law,  the  law  having  vested  all  the  estate 
of  the  testator  in  him,  subject  to  the  payment  or  retention  of 
the  testator's  debts  and  leg'acies,  of  which  the  debt  due  to  the 
executor  is  one.  In  debts  of  equal  degree  the  executor  is  en- 
titled to  retain  his  own  first,  and  this  right  of  retention  de- 


180  LEGAL    MAXIMS. 

volves  to  an  executor  of  an  executor.  An  executor  de  son 
tort  is  not  allowed  so  to  retain  Ms  debt  even  if  of  a  higher  de- 
gree than  others,  and  though  the  rightful  executor  had,  after 
action,  consented  to  the  retainer.  For,  that  would  encourage 
creditors  to  strive  who  should  first  take  possession  of  the 
goods  of  the  deceased,  and  to  take  advantage  of  their  own 
wrong. .  On  the  same  principle  is  it  that  if  a  creditor  make 
his  debtor  his  executor,  this  will  be  a  discharge  in  law  of  the 
debt ;  as,  if  the  obligee  of  a  bond  make  the  obligor  his  execu- 
tor, this  amounts  in  law  to  a  release  of  the  debt ;  or,  if  the 
creditor  appoint  one  of  several  joint,  or  one  of  several  joint 
and  several,  debtors  his  executors  ;  this  is  an  extinguishment 
of  the  debt  at  law,  and  a  release  to  them  all.  For  a  release 
to  one  of  several  obligors,  jointly,  or  jointly  and  severally 
bound,  discharges  the  others,  and  may  be  pleaded  in  bar. 
This  rule,  however,  as  between  the  debtor  executor  and  the 
creditors  of  the  testator,  only  applies  where  there  are  sufficient 
assets  to  pay  the  testator's  debts.  And  there  is  a  difference 
here  between  an  executor  and  an  administrator ;  in  the  first 
case  the  suspension  of  the  debt  being  the  voluntary  act  of  the 
creditor,  and  the  action  being  forever  gone,  in  the  second  the 
remedy  being  merely  suspended  by  act  of  law. 

One  partner  cannot  sue  his  copartner  at  law  for  his  share 
of  the  partnership  property  generally,  though  he  may  sue  his 
partners  or  any  of  them  individually  upon  any  separate  claim 
he  may  have  against  them,  or  upon  a  stated  balance  of  part- 
nership accounts  ;  or,  having  a  right  to  relief  for  some  breach 
of  the  partnership  articles,  he  may  by  bill  in  equity  dissolving- 
the  partnership,  thereby  obtain  the  relief  he  seeks. 


Bac.  Max.  Reg.  9;  5  Co.  30;  6  Co.  68;  8  Co.  136;  Com.  Dig.  Admor.  • 
(B.  5)  ;  2  Roll.  Abr.  413,  title  Release  ;  Hob.  10  ;  Sliepp.  Touch.  253,  256;^ 
2  &  3  Bla.  Com. ;  Plowd.  184 ;  Salk.  303  ;  1  Saund.  333  (n)  ;  11  Vin.  Abr. 
263;  10  Mod.  496  ;  Went,  OfiF.Ex.  cap.  2,  p.  73  ;  Curtis  v.  Vernon,  3  T.  R. 
587;  2  H.  Bl.  18;  Bac.  Abr.  Exors.  (A.)  10;  Lumley  ?).  Hodgson,  11 
East,  99  ;  Freakley  v.  Fox,  9  B.  &  C.  130;  Lloyd  v.  Davies,  2  Exch.  103. 


MAXIM  LXXXIII. 


^uoties  ill  verMs  nulla  est  ajiibiguitas,  ihi  nulla  expositio 
contra  verba  expressa  fienda  est :  (Co.  Litt.  147.) 

When  in  the  words  there  is  no  ambiguity,  then  no  expo- 
sition contrary  to  the  expressed  words  is  to  be  made. 

F  an  instrument  be  plain  upon  the  face  of  it,  and  complete 
in  meaning,  no  evidence  will  be  admitted  to  give  any 
other  construction  to  it  than  that  which  is  so  plainly  expressed, 
even  though  it  be  contended  that  the  plain  meaning  so  ex- 
pressed upon  the  face  of  the  instrument  does  not  carry  out 
the  intention  of  the  parties  ;  for,  "  Maledicta  expositio  quse 
corrumpit  textum " — That  exposition  is  bad  which  corrupts 
the  text ;  and  no  construction  shall  be  made  contrary  to  the 
express  words  of  the  grant.  If  a  man  grant  to  another  and 
his  heirs  a  rent  of  405.  out  of  liis  manor  of  Dale,  and  also 
grant  that  if  the  rent  be  behind  the  grantee  shall  distrain  in 
the  manor  of  Sale,  the  rent  is  only  issuing  out  of  the  manor 
of  Dale,  and  it  is  but  a  penalty  that  he  shall  distrain  in  the 
manor  of  Sale.  But,  both  manors  are  charged,  the  one  with 
a  rent,  and  the  other  with  a  distress  for  the  rent,  the  one  is- 
suing out  of  the  land,  and  the  other  to  be  taken  upon  the 
land.  So  if  I  grant  to  one  that  he  and  his  heirs,  or  the  heirs 
of  his  body,  shall  distrain  for  a  rent  of  40^.  within  my  manor 
of  Sale ;  this,  by  construction  of  law,  shall  amount  to  a  grant 
of  a  rent  in  fee  simple  or  fee  tail  out  of  my  manor  of  Sale  ; 
for  if  this  did  not  amount  to  a  grant  of  a  rent,  the  grant  would 
be  of  little  effect,  giving  only  a  bare  distress,  and  no  rent ;  and 
so  it  has  been  often  ruled  that  this  amounts  to  a  grant  of  rent 
by  construction  of  law ;  "  Ut  res  magis  valeat  quam  pereat." 
And,  that  the  right  to  distrain  upon  the  manor  of  Sale  in  the 
case  first  given  is  a  penalty  only,  is  sliown  in  that  the  law  in 
such  case  needs  not  to  make  construction  that  this  amounts  to 


182  LEGAL     MAXIMS. 

a  grant  for  a  rent,  for  tliere  a  rent  is  expressly  granted  to  be 
issuing  out  of  the  manor  of  Dale,  and  the  parties  have  ex- 
pressly limited  out  of  what  land  the  rent  shall  issue,  and  upon 
what  land  the  distress  shall  be  taken  ;  and  the  law  will  not 
make  an  exposition  against  the  express  words  and  intention  of 
the  parties,  when  such  intention  stands  with  the  rule  of  law, 
"  Quoties  in  verbis,  &c." 

The  rule  as  to  patent  ambiguity  applies  to  the  maxim  under 
consideration ;  as,  where  there  appears  to  be  an  omission  of 
words  in  a  document,  words  will  not  be  introduced  to  complete- 
it,  there  being  no  ambiguity  in  the  words  used,  and,  such  being 
the  case,  no  exposition  contrary  to  the  words  used  will  be 
made.  The  meaning  of  the  parties,  to  be  gathered  from  the 
words  used,  must  be  ascertained,  and  words  must  not  be  sup- 
plied to  make  up  their  supposed  meaning.  A  contract,  for  in- 
stance, must  be  read  according  to  what  is  written  by  the  parties, 
for  a  written  contract  cannot  be  altered  by  parol,  and  evidence 
is  not  admissible  to  show  that  the  parties  meant  something 
different  from  that  stated  in  the  contract  itself.  And  in  a 
will,  if  there  be  a  blank  for  the  devisee's  name,  parol  evidence 
will  not  be  admitted  to  show  what  person's  name  the  testator 
intended  to  insert. 

In  all  cases  where  a  written  instrument  appears  on  the  face 
of  it  to  be  complete,  parol  evidence  will  not  be  admitted  to 
vary  or  contradict  it ;  the  court  will  look  to  the  contract,  and 
no  construction  will  be  made  or  allowed  contrary  to  the  ex- 
press words. 


4  Co.  35  ;  7  Co.  23;  Co,  Litt.  147,  31 4  ;  Wing.  Max.  23,  24;  2  Saund. 
167;  2  Mer.  343;  Cheney's  Case,  5  Co.  68;  Windham  v.  Windham,  And. 
60  ;  Bishop  of  G.  v.  Wood,  Winch,  47  ;  2  A.  &  R.  239  ;  Nichol  v.  Godts, 
10  Exch.  194;  Tyrrell  v.  Lyford,  4  M.  &  S.  550;  Hollier  v.  Eyre,  9  CI.  & 
F.  11;  Hunt  v.  Hort,  3  Bro.  C.  C.  311;  Gwillim  v.  Gwillim,  5  B.  &  Ad. 
129;  Clayton  «.  Lord  Nugent,  13  M.  &  N.  200 ;  Williams  v.  Jones,  5  B.  & 
C.  108. 


MAXIM  LXXXIV. 


Ues  inter  alios  acta  alteri  nocere  non  debet:  (Co.  Lilt.  132.) 
One  person  ought  not  to  be  injured  by  the  acts  of  others 
to  which  he  is  a  stranfj-er. 


'&' 


EYERY  fact  not  admitted,  must  be  proved  upon  oath, 
either  on  the  trial  of  the  issue,  or  some  other  issue  in- 
volving the  same  question  between  the  same  parties.  Where 
other  evidence  is  adduced,  it  is  "  Kes  inter  aHos  acta,"  and  this 
maxim  applies  ;  unless  it  be  of  that  nature  which  necessity  has 
at  all  times  admitted ;  as,  documents  of  a  pubKc  nature,  parish 
registers,  &c. ;  or,  as  the  statements  and  declarations  of  per- 
sons deceased,  made  in  the  ordinary  course  of  their  duty  and 
calling,  or  against  their  interest,  and  which  are  admissible  even 
against  strangers  ;  as,  where  the  book  of  a  deceased  drayman  is 
put  in  evidence  to  prove  the  delivery  of  beer,  by  an  entry  of 
the  transaction  in  his  handwriting ;  or,  entries  in  the  books  of 
a  deceased  attorney  marked  as  paid,  to  prove  the  date  of  the 
transactions  to  which  they  refer ;  or,  an  entry  in  the  book  of  a 
midwife  marked  p>ccid,  to  prove  the  date  of  birth  of  a  child. 

Amongst  the  facts  taken  as  admitted,  are  all  judgments  and 
other  proceedings  in  rem,  i.  e.  of  a  public,  judicial  nature,  as 
distinguished  from  proceedings  tn  personam,  or  of  a  private 
nature. 

A  simple  illustration  of  the  maxim  is  that  of  a  judgment 
recovered  in  one  court,  which  may  be  successfully  pleaded  in 
bar  in  an  action  between  the  same  parties  for  the  same  thing 
in  another  court  of  concurrent  jurisdiction.  But  it  is  other- 
wise where  the  record  of  a  conviction  in  a  criminal  suit  is 
offered  as  evidence  of  the  same  fact  coming  into  controversy 
in  a  civil  suit,  in  which  case  it  is  inadmissible,  the  parties  not 
being  the  same,  the  crown  being  a  party  in  the  criminal  suit 
thouffh  not  in  the  civil. 


1S4:  LEGAL     MAXIMS. 

The  judgment  of  a  court  of  concurrent  jurisdiction  direct- 
ly upon  a  point,  is  conclusive  upon  the  same  matter  between 
the  same  parties.  But,  it  is  also  a  general  principle,  that  a 
transaction  between  two  parties  in  a  judicial  proceeding  ought 
not  to  bind  a  third.  Therefore,  the  depositions  of  witnesses  in 
another  cause  in  proof  of  a  fact — the  verdict  of  a  jury  finding 
a  fact — and  the  judgment  of  the  court  on  facts  so  found ;  al- 
though evidence  against  the  parties  and  all  claiming  under 
them ;  are  not  in  general  to  be  used  to  the  prejudice  of  stran- 
gers. This  principle,  governing  judgments  as  between  third 
parties,  has  been  thus  explained.  That  the  judgment  is  con- 
clusive or  an  estoppel,  if  pleaded,  where  there  is  an  opportu- 
nity of  pleading  it ;  but  that,  where  there  is  no  such  opportu- 
nity, then  it  is  conclusive  as  evidence ;  but,  if  the  party  for- 
bear to  rely  upon  it  as  an  estoppel  when  he  may  plead  it,  he  is 
taken  to  waive  the  estoppel,  and  to  leave  the  prior  judgment 
as  evidence  only  for  the  jury. 

In  order  to  bind  a  party,  he  must  have  sued  or  been  sued 
in  the  same  character  in  both  suits ;  as,  in  an  action  by  an  ex- 
ecutor on  a  bond,  he  will  not  be  estopped  by  a  judgment  in  an 
action  brought  by  him  as  administrator  on  the  same  bond,  but 
he  may  show  the  letters  of  administration  repealed. 

Of  the  exceptions  to  the  above  general  rule  may  be  men- 
tioned, all  judgments  of  a  public  nature ;  as,  relating  to  cus- 
toms, tolls,  &c. ;  which  bind  strangers  as  well  as  privies.  Judg- 
ments in  rem  bind  all  mankind,  and  of  this  nature  are  judg- 
ments in  proceedings  in  the  courts  of  admiralty,  spiritual,  and 
revenue  courts. 

The  reason  of  the  maxim  seems  to  be,  that  it  would  be  un- 
just to  bind  a  person  by  proceedings  taken  behind  his  back,  to 
which  he  was,  in  fact,  no  party,  and  to  which  he  had  not  an  op- 
portunity of  making  a  defense,  and  from  which  he  could  not 
appeal. 

Co.  Litt.  132;  5  Co.  33;  2  W.  BL  977;  Kinuersley  ».  Orpe,  2  Doug. 
517;  1  Salk.  290;  Duchess  of  Kingston's  case,  2  Smith  L.  C.  642,  5  ed.; 
Freeman  v.  Cooke,  2  M.  &  W.  654;  Outram  v.  Morewood,  3  East,  365; 
Litchfield  v.  Ready,  5  Esch.  939  ;  Higham  v.  Ridgway,  10  East,  116;  Doe 
V.  Robson,  15  East,  34;  Reid  v.  Jackson,  1  East,  357;  Carnarvon  v.  Ville- 
bois,  13  M.  &  W.  313;  The  Evangeline,  2  L.  T.  (N.  S.)  137;  Whittaker  v. 
Jackson,  11  L.  T.  (N.  S.)  155. 


MAXIM   LXXXV. 

Respondeat  superior  :  (4  lust.  114.) 
Let  the  principal  answer. 

THE  application  of  this  rule  arises  chiefly  out  of  the  relation 
existing  between  the  parties  in  the  cases  of  principal  and 
agent,  and  master  and  servant.  An  instance  whereof,  is  where 
a  servant  commits  a  trespass  by  command  of  his  master  ;  the 
servant  is,  in  such  case,  himself  liable  as  directly  committing 
the  trespass,  and  the  master  as  under  this  rule,  "  Respondeat 
superior."  So  in  the  case  of  negligence,  as  also  in  all  tortious 
acts  by  a  servant  or  other  agent  acting  under  the  authority, 
express  or  implied,  of  his  principal. 

The  rule  applies  also  to  cases  of  fraud  on  the  part  of  the 
servant  acting  apparently  within  the  scope  of  his  autliority, 
but  it  does  not  apply  to  wilfully  tortious  acts,  as  acts  of  pur- 
posed injury  not  falling  within  the  scope  of  such  authority. 
Nor  does  it  apply  to  acts  of  negligence  on  the  part  of  the  ser- 
vant not  arising  immediately  out  of  the  business  in  which  he  is 
engaged  on  behalf  of  his  master ;  as  where  A.  gratuitously 
permitted  the  use  of  his  shed  to  B.  for  the  purpose  of  the  latter 
having  a  job  of  carpentering  work  done  in  it  by  his  workman, 
and  the  workman  whilst  so  employed  accidentally  dropped  a 
match  with  which  he  had  lighted  his  pij)e,  and  thereby  set  fire 
to  the  shed  ;  it  was  held  that  B.  was  not  responsible  for  such 
damage,  though  the  jury  found  that  the  fire  was  caused  by  the 
negligent  act  of  B.'s  workman.  But  it  seems  that  it  would 
have  been  otherwise  if  the  workman  in  the  course  of  his  em- 
ployment had  been  guilty  of  any  negligence  at  all  applicable 
to  the  employment  in  which  he  was  engaged. 

The  master  is  liable,  even  though  the  servant  in  the  per- 
formance of  his  duty  is  guilty  of  a  deviation  from  the  strict 
line  of  it,  or  a  failure  to  perform  it  in  the  most  strict  and  con- 


180  LEGAL    MAXIMS. 

venient  manner ;  but,  where  tlie  servant  instead  of  doing  what 
he  is  employed  to  do,  does  something  not  warranted  by  his 
employment,  the  master  cannot  be  said  to  do  it  by  his  servant, 
and  so  is  not  responsible  for  the  negligence  of  the  servant  in 
doing  it.  If  a  master,  in  driving  his  carriage,  from  want  of 
skill  causes  injury  to  a  passer-by,  he  is  responsible  for  tlie  in- 
jury done  through  that  want  of  skill ;  so,  if  instead  of  himself 
driving,  he  employs  his  servant  to  drive,  the  servant  is  but  an 
instrument  in  his  hands,  and  what  the  servant  so  does  in  fur- 
therance of  his  master's  will,  is  the  act  of  the  master  according 
to  the  rules,  "  Qui  facit  per  alium  facit  per  se,"  and  "  Eespon- 
deat  superior." 

Public  functionaries,  as  judges,  magistrates,  &c.,  are  not 
liable  for  the  illegal  or  wrongful  acts  of  their  inferior  minis- 
terial officers,  provided  they  themselves  act  within  the  scope 
of  their  authority,  but  otherwise  if  not  within  the  scope  of 
such  authority.  Nor  is  any  servant  of  the  crown  liable  in 
such  case.  ISTor  does  the  maxim  apply  to  the  crown  itself.  A 
municipal  corporation  are,  however,  liable  for  the  negligent 
acts  of  their  servants ;  as  where,  in  laying  down  gas  pipes,  a 
piece  of  metal  being  chipped  out,  it  struck  against  the  plaint- 
iff's eye,  whereby  he  lost  his  sight. 

The  principle  of  the  rule,  however,  does  not  apply  where 
the  party  sought  to  be  charged  does  not  stand  in  the  character 
of  employer  to  the  party  by  whose  negligent  act  the  injury 
has  been  occasioned ;  as,  if  I  agree  with  a  builder  to  build  me 
a  house  according  to  a  certain  plan,  he  would  in  such  case  be 
an  independent  contractor,  and  I  should  not  be  liable  to  stran- 
gers for  any  wrongful  act  done  by  him  in  the  performance  of 
his  work. 


4  Inst.  114;  1  Bla.  Com.;  3  Salk.  271;  Stevens  v.  Midland  Counties 
R,  C.  10  Exch.  336 ;  McKensie  v.  McLeod,  10  Bing.  385 ;  Scott  ».  Shep- 
herd, 1  Smith  L.  C.  899,  5  ed.  ;  Limpus  «.  Omnibus  Co.  7  L.  T.  (N.  S.)  64 ; 
Scott  V.  Mayor  of  Manchester,  3  H.  &  N.  204  ;  Lumley  v.  Gye,  22  L.  J. 
478,  Q.  B.  jRapson  v.  Cubitt,  9  M.  &  W.  710;  Upton  v.  Townend,  17  C.  B. 
71  ;  Gordon  v.  Rolt,  8  Exch.  365 ;  Coleman  v.  Riche,  16  C.  B.  104  ;  Lyons 
V.  Martin,  8  Ad.  &  Ell.  513  ;  Lamb  v.  Palk,  9  C.  &  P.  639  ;  Williams  v, 
Jones,  11  L.  T.  (IST.  S.)  108;  Mitchell  v.  Crassweller,  13  C.  B.  246.      . 


MAXIM  LXXXVI. 


Rex  non  potest  peccare  :  (2  Eoll.  E.  304.) 
The  king  can  do  no  wrong. 

THIS  maxim  does  not  imply  that  the  king  cannot,  as  a  man, 
do  wrong,  but  that,  in  his  kingly  capacity,  wrong  is  not  to 
be  imputed  to  him.  As  an  individual,  however,  the  king  is 
protected  from  ordinary  common-law  proceedings  by  a  subject 
by  suit  or  action  for  injury  of  a  private  nature  not  in  respect 
to  a  claim  to  property. 

The  king,  it  is  said,  is  not  under  the  dominion  of  man,  but 
of  God  and  the  law,  and  it  is  not  to  be  j)i"esumed  that  he  will 
do  or  sanction  anything  contrary  to  the  law,  to  which  he  is 
equally  amenable  with  his  subjects  :  but,  if  an  evil  act  be  done, 
though  emanating  from  the  king  personally,  it  will  be  imputed 
to  his  ministers,  and  the  king  is  in  no  way  responsible  for  their 
acts,  whether  they  be  his  immediate  advisers  or  any  one  acting 
in  authority  under  him  or  them. 

Upon  the  principle  of  this  maxim,  the  crown  cannot  be 
prejudiced  by  the  neglect  or  wrongful  acts  of  its  servants,  nor 
by  errors  in  grants,  letters  patent,  &c.,  which  will,  as  a  matter 
of  course,  be  amended.  Where  the  crown  has  been  induced 
by  fraud  or  misrepresentation  to  make  a  grant  of  any  right  or 
privilege  whereby  injury  is  done  to  another,  the  grant  is  void ; 
for  the  crown  cannot  dispense  with  anything  in  which  the  sub- 
ject has  an  interest,  nor  make  a  grant  contrary  to  law  or  in  de- 
rogation of  the  vested  interests  of  individuals.  But  this  does 
not,  of  course,  apply  to  any  grant  by  Act  of  Parliament,  for 
nothing  can  be  admitted  to  invalidate  such  a  grant ;  but  it  ap- 
plies to  a  grant  of  crown  lands,  of  letters  patent  for  inventions, 
and  such  like  ;  as,  where  two  patents  have  been  granted  for  tlie 
same  thing,  the  one  last  granted  is  void,  and  that,  not  for  its 
want  of  novelty  alone,  but  because  the  patent  lias  been  im- 


188  LEGAL     MAX  I'M  S. 

properly  obtained,  there  not  having  been  any  consideration  for 
the  grant  at  the  time  it  was  made. 

It  follows  of  necessity,  from  the  relative  position  of  the 
parties,  that  no  injury  can  be  intentionally  done  by  the  crown 
to  the  subject ;  but,  if  by  any  means  a  wrong  be  committed  by 
the  crown  or  any  of  its  officers  acting  upon  proper  authority, 
that  injury  will  be  redressed,  not,  however,  by  compulsory  ac- 
tion as  between  subject  and  subject,  but  by  suit  in  the  nature 
of  a  petition  of  right ;  which  is  a  statement  of  the  grievance 
complained  of,  and  praying  redress,  and  upon  which  the  king 
orders  justice  to  be  done.  The  petition  is,  however,  a  petition 
of  right,  that  is,  the  prayer  of  it  is  grantable  ex  dehito  justitiw, 
and  not  ex  merd  gratia^  or  of  favor  merely. 

Recent  legislation  has  materially  altered  the  mode  of  pro- 
ceeding upon  a  petition  of  right  with  a  view  to  render  it  more 
simple.  A  petition  of  right  may  now  be  instituted  in  any  of 
the  superior  courts  of  common  law  or  equity  at  Westminster, 
and,  being  addressed  to  her  Majesty,  as  in  a  form  given  in  the 
schedule  to  the  Act,  setting  forth  the  facts  entitling  the  sup- 
pliant to  relief,  is  to  be  left  with  the  Secretary  of  State  for 
consideration  of  her  Majesty,  who,  if  she  think  fit,  will  there- 
upon grant  her  fiat  that  right  be  done.  The  petition  is  then 
left  with  the  Solicitor  of  the  Treasury,  indorsed  with  a  prayer 
for  a  plea  or  answer  on  behalf  of  her  Majesty,  who  will  trans- 
mit it  to  the  particular  department  to  which  the  subject  of  it 
relates,  when  it  is  proceeded  with  in  nearly  the  same  manner  as 
an  ordinary  suit. 


2  RolL  Rep.  304;  1  &  2  Bla.  Com.;  Hob.  154;  1  Ld.  Raym.  49;  Brun 
ton  V.  Hawkes,  4  B.  &  Aid.  542;  Howard  v.  Gossett,  10  Q.  B.  386  ;  Buron 
V.  Denman,  2  Exch.  167;  Stead  «.  Carey,  1  C.  B.  516;  Reg.  ».  Renton,  2 
Exch.  216;  Vis.  Canterbury  ?;.  A.G.  1  Phillips,  306;  Gumming  ?).  Forrester, 
2  Jac.  &  W.  334;  Reg.  v.  Eastern  Arcliipelago  Co.  2  E.  &  B.  856;  Morgan 
v.  Seaward,  2  M.  &  W.  544 ;  Tobin  v.  The  Queen,  14  C.  B.  (N.  S.)  505 ; 
23  &  24  Vict.  34. 


MAXIM  LXXXVII. 


Bex  nunquam  moritur  :  (Branch.  Max.  197,  5  ed.) 
The  kinff  never  dies. 


•» 


IN  Anglia  non  est  interregnum,  is  tlie  meaning  of  this 
maxim.  There  is  always  a  king  of  England ;  there  is  no 
interregnum  or  space  of  time  between  the  death  of  one  king 
and  the  beino-  kino-  of  his  successor. 

The  principle  contained  in  this  maxim  of  our  constitution 
is  founded  upon  motives  of  expediency,  and  to  avoid  dissen- 
sion in  troublesome  times,  the  descent  of  the  crown  being  once 
fixed. 

The  law  ascribes  to  the  sovereign  in  his  political  capacity 
perpetuity.  The  king  never  dies.  George  or  William  may  die, 
but  the  king  does  not.  For,  immediately  upon  the  death,  in  his 
natural  capacity ;  or,  as  it  is  technically  termed,  demise,  of  the 
reigning  sovereign ;  his  sovereign  dignity  vests  by  act  of  law, 
without  any  interregnum  or  interval,  in  his  heir,  who  is  eo  in- 
stant i,  to  all  intents  and  purposes,  king.  And  which  term  de- 
mise, as  applied  to  the  death  of  the  king,  means  only  that,  in 
consequence  of  the  disunion  of  the  king's  natural  body  from 
his  body  politic,  the  kingdom  is  transferred  or  demised  to  his 
successor,  and  so  the  royal  dignity  remains  perpetual. 

In  accordance  with  this  maxim,  if  a  grant  of  lands  be  made 
to  the  king  without  the  words  heirs  or  successors,  a  fee  simple 
will  pass  ;  for  that  in  judgment  of  law  he  never  dies.  And,  as 
the  king  commences  his  reign  from  the  day  of  the  death  of  his 
ancestor,  it  has  been  held  that  compassing  his  death  before 
coronation,  or  even  before  proclamation  of  him,  is  a  compass- 
ing the  king's  death,  he  being  king  presently,  and  the  procla- 
mation and  coronation  being  only  honorable  ceremonies  for 
the  further  notification  thereof. 

Notwithstanding  the  rule  that  the  king  never  dies,  it  has 


190  LEGAL     MAXIMS. 

been  held,  in  effect,  that  the  maxim  "  Actio  personalis  moritur 
cum  persona  "  applies  in  the  case  of  the  death  of  the  king,  to  a 
claim  by  a  subject  to  recover  compensation  from  the  crown  for 
damage  to  the  property  of  an  individual,  occasioned  by  negli- 
gence of  the  servants  of  the  crown  in  a  preceding  reign,  and 
that  a  petition  of  right  in  such  case  will  not  lie ;  also,  that  the 
reigning  sovereign  is  not  liable  to  make  compensation  for 
damage  to  the  property  of  an  individual,  occasioned  by  the 
negligence  of  the  servants  of  the  crown  in  a  preceding  reign  ; 
nor  seiiible^  even  where  such  damage  has  been  done  in  his  own 
reign  ;  but  this  latter,  under  the  maxim,  "  Ilex  non  potest 
peccare." 

It  follows  from  the  fact  that  the  heir  or  successor  of  one 
king  is  king  immediately  upon  the  demise  of  his  predecessor, 
that  the  king,  as  such,  cannot  be  a  minor  ;  and  the  rules  for 
the  good  government  of  a  kingdom  require  that  he  who  is  to 
govern  and  manage  the  kingdom  should  not  be  considered  a 
minor,  and  incapable  of  governing  his  own  affairs ;  therefore, 
grants,  leases,  &c.,  made  by  him  when  under  age,  bind  pres- 
ently, and  cannot  be  avoided  by  him,  either  during  minority 
or  when  he  afterwards  comes  of  age. 

The  following  maxims  relating  to  the  crown,  not  before  re- 
ferred to,  may  be  appropriately  stated  here  :  "  Kon  potest  rex 
gratiam  facere  cum  injuria  et  damno  aliorum" — The  king  can- 
not confer  a  favor  at  the  expense  and  to  the  injury  of  others. 
"  Eex  non  debet  esse  sub  homine,  sed  sub  Deo  et  sub  lege, 
quia  lex  facit  regem  " — The  king  ought  not  to  be  under  the 
dominion  of  man,  but  under  God  and  the  law,  because  the  law 
makes  the  king:. 


Branch.  Max.  197,  5  ed.  ;  1  &  2  Bla.  Com.  ;  Plowd.  177,  212;  1  Roll. 
Abr.  728  ;  Chit.  Prec.  Crown,  5;  Raym.  90;  Co.  Litt.  9,  43;  4  Bac.  Abr. 
tit.  Prerogative,  pp.  151-215  ;  5  Co.  27  ;  6  Co.  27;  7  Co.  12,  30  ;  Hal.  His. 
P.  C.  101-103  ;  Comyn  Dig.  Prerogative  D.  78  ;  Yin.  Abr.  tit.  Prerogative; 
3  Inst.  7  ;  4  Inst.  209,  210 ;  Post.  Rep.  189 ;  6  Bac.  Abr.  386  ;  Rorlve  v.  Day- 
rell,  4  T.  R.  402  ;  Vis.  Canterbury  v.  Attorney  General,  1  Phillips,  306. 


MAXIM  LXXXVIII. 


Moij  ii'est  lie  'per  ascun  statute  si  il  ne  soit  expressement  nos- 

me :  (Jenk.  Cent.  307.) 
The  king  is  not  bound  by  any  statute  if  be  be  not  ex- 

13ressly  named  therein. 

f  1 1HIS  maxim  must  not  be  taken  to  extend  to  any  Act  giving 
-L  relief  against  a  wrong,  nor  to  Acts  passed  for  the  pubhc 
welfare,  by  which  the  king  is  certainly  bound,  though  not 
named  therein.  It  extends,  however,  to  any  statute  tending 
to  divest  the  king  of  any  of  his  royal  prerogatives  respecting 
which  he  will  not  be  bound  thereby  without  express  words.  It 
is,  however,  well  understood  that  none  of  the  king's  preroga- 
tives extend  to  do  injury  to  any  one,  being  created  expressly 
for  the  benefit  of  the  people,  and  -where  they  have  a  contrary 
tendency  they  must  be  considered  as  contrary  to  law. 

One  of  the  attributes  of  sovereignty  is,  that  the  king  in  his 
political  capacity  is  absolute  perfection  ;  he  can  do  no  wrong, 
nor  suffer  wrong. 

An  Act  of  Parliament  is  the  exercise  of  the  highest  author- 
ity that  this  kingdom  acknowledges.  It  has  power  to  bind 
every  subject  in  the  land,  and  the  dominions  belonging  thereto  ; 
even  the  king  himself  if  particularly  named  :  but  it  is  one  of 
the  attributes  of  sovereignty  that  the  king  is  not  bound  by  any 
statute  unless  therein  specially  named,  and  this,  notwithstand- 
ing that  it  is  also  said  to  be  a  maxim  of  English  law,  that  "  Rex 
debet  esse  sub  lege,  quia  lex  facit  regem." 

Tlie  king,  then,  is  not  bound  by  any  Act  of  Parliament  un- 
less he  be  named  therein  by  special  and  particular  words.  It 
is  said  that  the  most  general  words  that  could  be  devised,  as, 
"  any  person  or  persons,  bodies  politic  or  corporate,  &c.,"  would 
not  affect  him  in  the  least  if  they  had  any  tendency  to  restrain 
or  diminish  any  of  his  rights  or  interests.     It  is  upon  the  like 


192  LEGAL    MAXIMS. 

principle  that  a  statute  wliicli  treats  of  things  or  persons  of  an 
inferior  rank,  cannot  by  any  general  words  be  extended  to  those 
of  a  superior ;  as  a  statute  treating  of  "  deans,  prebendaries, 
parsons,  vicars,  and  others  having  spiritual  promotion^''  would 
not  extend  to  bishops,  though  they  have  spiritual  promotion  ; 
deans  being  the  highest  persons  named,  and  bishops  being  still 
higher.  For,  as  to  the  king,  it  would  be  most  miscliievous  to 
the  public  welfare  if  in  him  the  strength  of  the  executive 
power  were  liable  to  be  curtailed  by  constructions  and  implica- 
tions of  the  subject,  without  the  exj^ress  consent  of  such  exec- 
utive. Yet,  where  an  Act  of  Parliament  is  made  expressly  for 
the  preservation  of  public  rights,  and  the  suppression  of  public 
wrongs,  without  interfering  with  the  established  right  and  pre- 
rogatives of  the  crown,  it  is  said  to  be  binding  as  well  upon  the 
king  as  upon  subject.  And  it  is  said  also  with  reference  to  ec- 
clesiastical matters,  that  the  king,  as  well  as  the  subject,  is 
bound  by  statute  having  reference  thereto,  unless  expressly  ex- 
empted, and  that  in  all  such  statutes  relating  to  ecclesiastical 
matters,  the  king  comes  within  the  meaning  of  the  words,  per- 
son or  persons,  body  politic  or  corporate,  as  being  persona 
mixta,  and  body  politic  also. 

The  king  may,  however,  take  the  benefit  of  any  particular 
statute,  although  not  expressly  named. 

The  following  modern  instance  is  a  practical  illustration  of 
the  maxim.  The  county  courts  Acts  takes  away  the  power  of 
a  superior  court  to  remove  a  plaint  from  the  county  court  by 
writ  of  certiorari  where  the  debt  or  damage  shall  not  exceed 
hi.  It  has  been  held  that  the  statutory  provision  in  such  case 
did  not  take  away  the  prerogative  right  of  the  crown  to  remove 
into  the  Court  of  Exchequer  a  cause  affecting  the  revenue. 


Jenk.  Cent.  307  ;  Locke  on  Gov.  p.  2;  Comyn's  Dig.  ;  Bacon's  Abr.tit. 
Prerogative;  Finch  Law,  355;  1  Bla.  Com. ;  Bracton,  1.  3,  tr.  1,  c.  9;  3 
Co.  46;  7  Co.  32;  11  Co.  68,  71,  74;  Duchy  of  Lancaster,  Plowd.  Com. 
213;  Lord  Bercley's  Case,  Plowd.  Com.  334,  240;  Act.  Gen.  v.  Radloff,  11 
Esch.  94;  9  &  10  Vict.  c.  95;  Mountjoy  v.  Wood,  1  H.  &  N.  58;  Rex  r. 
Wright,  3  B.  &  Ad.  683 ;  Rex  r.  Ward,  4  Ad.  &  Ell.  460. 


MAXIM  LXXXIX. 


JSahis  populi  est  suprema  lex :  (13  Co.  139.) 

The  welfare  of  the  people,  or  of  the  public,  is  supreme 
law.    . 

N  all  cases  of  necessity  the  interests  of  an  individual  must 
give  way  to  the  interests  of  the  multitude,  even  though  it 
extend  to  his  life.  This  is  shown  in  the  experience  of  every 
nation  and  people  upon  the  face  of  the  earth.  The  principle 
governing  this  rule  extends  to  private  as  well  as  to  public  in- 
terests. And  from  the  peasant  to  the  sovereign,  all  are  amen- 
able to  its  illimitable  sway. 

If  a  public  road  be  rendered  impassable  by  floods  or  other- 
wise, the  public  have  a  right  of  way  over  the  adjoining  prop- 
erty. Or,  if  there  be  but  one  road  to  a  place,  and  no  other 
mode  of  going,  that  is  a  public  road  and  a  common  highway 
of  necessity,  and  the  public  are  entitled  to  use  it  as  such. 
Nor  will  an  obstruction  be  permitted  to  be  erected  in  a  public 
highway,  without  the  authority  of  Parliament,  where  it  is  a 
nuisance  to  the  general  public,  though  it  may  be  advantageous 
to  some  portion  of  the  public.  If  a  man's  house  be  on  fire, 
both  it  and  other  property  not  on  fire,  may  be  pulled  down  to 
prevent  the  fire  spreading  to  other  more  valuable  property. 
So  in  time  of  war,  any  and  every  man's  property  may  be  taken 
for  the  defense  or  preservation  of  the  kingdom  generally.  It 
is  upon  this  principle  that  private  individuals  are  bound  to 
perform  certain  public  duties  when  called  upon,  as  to  prevent 
a  breach  of  the  peace,  serve  as  jurors,  soldiers,  sailors,  &c.  It 
is  upon  this  principle,  also,  that  public  ofiicers  acting  in  the 
proper  discharge  of  their  duties  are  not  liable  for  injury  to 
private  individuals. 

The  payment  of  taxes  by  burgesses  and  citizens  for  the 
support  of  a  particular  municipality,  and  by  owners  and  occu- 
13 


194  LEGAL    MAXIMS. 

piers  of  property  generally  to  defray  the  expenses  of  the  nation 
at  large,  are  apt  instances  of  tlie  liability  of  individuals  to  con- 
tribute to  the  support  of  tlie  whole  nation,  and  to  sacrifice 
private  interests  to  the  public  good.  And  when  it  is  considered 
that  the  general  taxes  of  this  country  are  imposed  by  the 
people  themselves  through  their  representatives  in  Parliament, 
it  is  not  difficult  to  understand  how  intimately  connected  indi- 
vidual is  with  the  general  welfare,  nor  how  highly  the  principle 
of  this  maxim  is  esteemed  in  this  country. 

All  persons  who  are  called  upon  to  make  individual  sacrifice 
for  the  public  good  know  that  they  receive  a  corresponding 
benefit  in  the  protection  afforded  to  them  in  their  person  and 
property  by  the  laws  of  the  country,  and  in  other  privileges 
thereby  accorded  to  them. 

The  most  arbitrary  demand  made  upon  an  individual  in  this 
country  now-a-days  is  where,  contrary  to  the  rule,  "Nemo 
cogitur  rem  suam  vendere,  etiam  justo  pretio,"  he  is  by  Act  of 
Parliament  compelled,  at  the  instance  of  a  few  speculating  in- 
dividuals, to  give  up  his  private  property  for  some  commercial 
undertaking,  as  to  give  up  some  cherished  country  residence 
for  the  purpose  of  a  line  of  railway,  or  his  business  premises 
for  some  so-called  town  improvement,  professedly  of  course, 
but  often  questionably,  for  the  public  good.  In  these  cases, 
however,  the  principle  said  to  be  adopted  is,  that  private  inter- 
est is  not  to  be  sacrificed  to  a  greater  extent  than  is  necessary 
adequately  to  secure  the  public  interests,  and  that  private  in- 
terests are  duly  considered  in  all  such  cases,  not  only  by  Par- 
liament in  the  making  of  such  laws,  but  also  by  the  courts  of 
law  and  equity  in  the  construction  of  them. 


13  Co.  139^  Jenk.  Cent.  85,  223;  4  Inst.  275 ;  Denn  v.  Diamond,  4  B. 
&  C.  245;  He  Laws,  1  Excli.  447;  Chichester  v.  Lethbridge,  Willes,  72; 
Gosling  V.  Veley,  12  Q.  B.  407;  Stracey  v.  Nelson,  12  M.  &  W.  540;  Taylor 
V.  Loft,  8  Exch.  278;  "Webb  v.  Manchester  &  L.  Railway  Co.,  4  My.  &  Cr. 
116;  Simpson  v.  Lord  Howden,  1  Keen,  598;  Reg.  v.  Train,  31  L.  J.  169,. 
M.  C. ;  Hutchinson  v.  Manchester  &  R.  R.  C,  14  M.  &  W.  694. 


MAXIM  XC. 


Sic  utere  tuo  ut  alienum  non  It^das :  (9  Co.  59.) 

So  use  your  own  i)roperty  as  not  to  injure  your  neigh- 
bor's. 

THE  principle  of  tMs  maxim  applies  to  the  public,  and  to 
public  rights,  as  well  as  to  individuals  and  to  individual 
rights,  and  in  such  a  manner  as  that  when  any  such  right  is 
violated  whereby  damage  is  sustained,  a  right  of  action  arises. 

The  maxim  may  be  briefly  illustrated  by  the  following,  out 
of  many  similar  instances,  viz. :  the  obstruction  of  ancient 
lights  ;  the  stopping,  by  obstruction  or  diversion,  on  your  own 
land,  of  a  flow  of  water  on  to  your  neighbor's  ;  the  erection  of 
public  works,  brick-kilns,  &c.,  emitting  large  quantities  of 
smoke,  offensive  smells,  &c.,  near  to  a  private  dwelling-house  ; 
all  cases  of  nuisance,  negligence,  &c. 

In  an  action  for  building  a  pig-sty  and  keeping  pigs  in  it, 
BO  near  to  the  plaintill's  house  as  that  the  smell  from  them 
was  offensive  to  the  plaintiff  and  the  inmates  of  his  house,  and 
a  nuisance ;  it  was  held  that  the  action  was  well  maintainable 
for  the  injury  done  to  the  plaintiff's  house  by  the  erection  of 
the  sty  and  keeping  pigs,  whereby  the  air  entering  the  plaint- 
iff's house  was  infected  and  corrupted.  And  this  was  con- 
ceded upon  the  principle  that  houses  are  necessary  for  the 
habitation  of  man,  and  the  chief  object  of  a  house  is  that  it 
should  be  fit  for  habitation,  and  anything  depriving  it  of  that 
necessary  quality  is  an  injury  to  the  house  and  actionable ;  as, 
infecting  the  air,  stop^Ding  up  wholesome  air,  shutting  out  the 
light,  &c. 

The  maxim  applies  as  well  to  a  riglit,  as  to  property  ;  as, 
where  injury  is  done  to  one  by  the  negligent  use  by  another 
of  his  property.  Upon  this  principle,  the  lessee  and  occupier 
of    refresliment  rooms  at  a  railway  station,  and  of   a  cellar 


196  LEGAL    MAXIMS. 

underneath,  who  employed  a  coal  dealer  to  put  coals  into  the 
cellar,  and  who,  in  so  doing,  left  open  a  trap  door  in  the  plat- 
form of  the  station,  over  which  passengers  had  to  go  on  their 
way  out,  and  through  which  the  plaintiff,  a  passenger,  fell  and 
was  injured,  was  held  liable  in  damages  for  the  injury  sus- 
tained by  such  passenger  ;  it  being  his  obvious  duty  to  use  the 
trap  door  in  such  a  manner  as  not  necessarily  to  create  such 
danger,  but  to  use  reasonable  precautions  to  see  that  there  was 
no  injury  to  travelers  using  the  platform. 

Where  one  in  exercise  of  his  private  rights  over  his  own 
property,  on  a  portion  of  his  own  land,  does  what  interferes 
with  his  neighbor's  right  to  the  enjoyment  of  pure  air,  and 
causes  injury  to  his  neighbor's  property,  which  might  be 
avoided  by  the  acts  complained  of  being  done  on  other  part  of 
his  own  property,  a  court  of  equity  will  interfere,  by  injunc- 
tion, to  prevent  a  continuation  of  such  acts.  As,  where  the 
defendant,  having  entered  into  a  contract  with  Government 
for  the  supply  of  a  large  quantity  of  bricks,  obtained  a  lease 
of  a  tract  of  land,  and  began  brick  burning  operations,  by 
constructing  a  line  of  kilns  or  clamps  at  a  distance  of  about 
340  yards  south  of  the  plaintiff's  mansion  house,  and  thirty 
from  the  boundary  fence  ;  the  court  restrained  the  defendant, 
by  injunction,  from  lighting  or  firing  any  kilns  within  a  dis- 
tance of  650  yards  from  the  plaintiff's  house. 

The  maxim,  "  ^Edificare  in  tuo  proprio  solo  non  licet 
quod  alteri  noceat " — It  is  not  lawful  to  build  upon  your  own 
land  to  the  injury  of  another,  is  also  applicable  here. 


Aldred's  case,  9  Co.  58  &  59 ;  3  Inst.  201 ;  3  Bla.  Com. ;  Corley  r.  Hill, 
4  C.  B.  (N.  S.)  536;  Jeffries  v.  Williams,  5  Exch.  797  ;  Humphries  v.  Brog- 
den,  12  Q.  B.  739  ;  Bradbee  v.  Mayor  of  London,  5  Scott  K  R.  120; 
Chasemore  v.  Richards,  3  H.  &  N.  168  ;  Vaughan  v.  Menlove,  3  Bing.  N. 
C.  468 ;  Broadbent  v.  Imp.  Gas  Co.  34  L.  T.  1 ;  Egerton  v.  Earl  Brownlow, 
4  H.  L.  Cas.  195  ;  Hole  v.  Barlow,  31  L.  T.  134;  Walter  v.  Selfe,  17  L.  T. 
103 ;  Pickard  v.  Smith,  4  L.  T.  (N.  S.)  470 ;  Beardmore  v.  Treadwell,  7  L. 
T.  (N.  S.)  207. 


MAXIM  XCI. 


Summa  ratio  est  quce  pro  religione  facit :  (Co.  Litt.  341.) 
The  highest  rule  of  conduct  is  that  which  is  induced  by 
religion. 

THIS  is  the  golden  rule  of  every  nation.  All  perfect  laws 
are  founded  upon  religion.  The  laws  of  all  nations  are 
supposed  to  be  so  founded,  ^o  people  will  deny  this.  The 
only  question  is,  what  is  religion  ?  and  to  the  difference  of 
opinion  upon  this  question,  is  owing  the  difference  in  the  cus- 
toms, habits,  and  laws  of  the  universe.  The  laws  of  England 
are  supposed  to  be,  in  every  respect,  consistent  with  the  re- 
ligion there  estabhshed. 

By  reason  of  tliis  rule,  the  law  gives  to  the  church  many 
privileges  in  order  to  favor  rehgion.  So  upon  a  question  as  to 
in  whom  is  the  fee  simple  of  glebe  la^ids  holden  to  the  parson 
and  his  successors,  it  is  said  not  to  be  in  the  patron  or  ordinary, 
but  in  abeyance ;  being  vested  in  the  parson  and  his  successors, 
which  the  patron  and  ordinary  are  not,  and  this,  because  the 
parson  has  curara  animarum^  and  is  bound  to  celebrate  divine 
service,  and  to  administer  the  sacraments,  and,  therefore,  no 
act  of  the  predecessor  can  take  away  the  entry  of  the  succes- 
sor, and  drive  him  to  a  real  action  whereby  he  shall  become 
destitute  of  maintenance  in  the  meantime. 

It  is  also  said  that  a  parson,  for  the  benefit  of  the  church 
and  of  his  successor,  is  in  some  cases  esteemed  in  law  to  have  a 
qualified  estate  in  fee  simple ;  but,  to  do  anything  to  the  prej- 
udice of  his  successor,  in  many  cases,  as  to  commit  waste,  he  is 
considered  as  having  only  an  estate  for  life.  For,  though  a 
parson  may  make  the  living  better  for  his  successor,  he  is, 
otherwise,  as  a  minor,  he  cannot  make  it  worse.  "  Ecclesia 
fungitur  vice   minoris ;  meliorem   facere   potest    conditionem 


19S  LEQAL     MAXIMS. 

suam,  deteriorem  neqiiaquam  ;"  and  "  Ecclesia  meliorari  •  non 
deteriori  potest." 

If  a  parson  make  a  lease  for  years  not  warranted  hy  any 
statute,  the  lease  is  void  as  against  liis  successor,  and  no  act  of 
his  successor  can  make  it  good ;  but  it  binds  the  lessor,  for  no 
man  shall  take  advantage  of  his  own  wrong.  The  king  even, 
is  bound  by  acts  of  Parliament  which  restrain  ecclesiastical 
persons  from  committing  waste  unless  special  provision  be 
made  for  him  therein,  and  this,  it  must  be  observed,  is  con- 
trary to  the  rule  of  law,  "  Le  roy  n'est  lie  per  ascun  statute 
si  il  ne  soit  expressement  nosme."  Many  Acts  of  Parliament 
have  been  passed  limiting  the  granting  of  leases  of  glebe  land 
to  short  terms  of  years,  and  regulating  the  terms  of  the  grants 
so  as  not  to  injure  the  successor,  and  with  a  view  to  maintain 
the  efficiency  of  the  church  in  matters  spiritual,  by  providing 
for  the  temporal  wants  of  its  ministers.  For,  if  this  were  not 
so,  it  is  said  the  result  would  be  dilapidations,  decay  of  spirit- 
ual livings,  and  of  hospitality,  and  utter  impoverishing  of  the 
successors,  and  by  consequence  decay  of  religion  and  justice. 

The  law  will  never  presume  or  admit  anything  against  rea- 
son or  religious  duty,  and,  therefore,  it  may  be  that  it  is  a  prin- 
ciple to  be  regarded  in  the  laws  of  this  country,  that,  though 
the  king  is  not  bound  by  any  statute  unless  expressly  named, 
where  it  affects  his  temporal  prerogative,  yet,  that  must  not  be 
understood  with  reference  to  matters  solely  for  the  main- 
tenance of  the  religion  of  this  country,  in  respect  of  which  he 
will  be  as  much  bound  as  the  subject,  unless  thereby  expressly 
exempted. 

Genesis,  xxii.  18,  xxvi.  28,  xxxi.  44;  Exod.  xix.  5,  xx.  xsi.  xxii.  and 
xxiii. ;  Levit.  xxvi.;  Mai.  iv.  4;  Matt.  xi.  13;  Acts,  xiii.  .39,  vii.  53;  Co. 
Litt.  311,  341 ;  Wing.  Max.  3 ;  5  Co.  14 ;  11  Co.  70  ;  1  Bla.  Com ;  Noy  Max. 
1  ;  Viner's  Abr.  Glebe  A. ;  Com.  Dig.  "Waste  A. ;  Att.  Gen.  v.  Cbolmley,  3 
Eden,  304;  Duke  of  Marlborough  v.  St.  John,  16  Jur.  310;  Edgerley  «. 
Price,  Finch  Rep.  18;  Parry  i\  Jones,  1  C.  B.  (N.  S.)  345;  Rogers's  Eccl. 
Law;  33  Hen.  8,  c.  38;  1  Eliz.  c.  19;  1  Jac.  c.  3;  13  Eliz.  c.  10;  14  Eliz. 
cc.  11,  14;  18  Eliz.  c.  6;  43  Eliz.  c.  29;  43  Geo.  3,  c.  108;  55  Geo.  3,  c. 
147;  6  Will.  4,  c.  30;  6  &  7  Will.  4,  c.  64. 


MAXIM  XCII. 


TJH  eadein  ratio  ihi  idem  lex  ;  et  de  similihus  idem  est  judi- 
cium :  (Co.  Litt.  191.) 

Where  there  is  the  same  reason,  there  is  the  same  law  ; 
and  of  things  similar,  the  judgment  is  similar. 

FOR  the  first  j)art  of  this  maxim  it  may  be  said,  that  law  is 
founded  upon  reason,  and  is  the  perfection  thereof,  and 
that  what  is  contrary  to  reason  is  contrary  to  law  ;  and  for  the 
second,  that  where  no  established  precedent  can  be  found  ex- 
actly in  point,  whereupon  to  ground  a  decision,  the  case  in 
■question  may  be  properly  decided  by  reference  to  similar  cases. 

The  law  will  not  admit  any  presumption  against  reason ; 
for  the  law  is  reason  and  equity  ;  to  do  right  to  all  and  to  keep 
men  from  wrong  and  mischief ;  and  therefore  the  law  will 
never  make  any  construction  against  law,  equity,  and  right. 
Wherever  there  is  the  like  reason  there  is  the  like  law,  for, 
"  Ratio  est  anima  legis."  And  therefore,  "  Ratio  potest  alle- 
gare  deticiente  lege  ; "  but  it  must  be,  "  Ratio  vera  et  legally, 
et  non  apparens."  So,  "  Argumentum  a  simili,"  is  good  in 
law ;  "  sed,  similitudo  legalis  est  casuum  diversorum  inter  se 
collatorum  similis  ratio ;  quod  in  uno  similium  valet,  valebit  in 
altero,  dissimilium  dissimilis  est  ratio." 

"  Nihil  quod  est  contra  rationem  est  licituni."  For,  reason 
is  the  life  of  the  law,  and  the  common  law  is  nothing  but  rea- 
son, and  this  reason  is  that  which  has  been  gotten  by  long  ex- 
perience, and  not  each  man's  natural  reason.  So  it  is  said  that 
this  legal  reason  is  "  summa  ratio  ; "  for,  if  all  the  reason  that  is 
in  men's  heads  were  united  into  one,  yet  could  he  not  make 
such  a  law  as  is  the  law  of  England.  Because,  by  many  suc- 
ceeding ages,  it  has  been  fined  and  refined  by  an  infinite  num- 
ber of  grave  and  learned  men,  and  by  long  experience  grown  to 
such  perfection  as  to  justify  the  old  rule,  "  JSTeminem  oportet 


200  LEGAL    MAXIMS. 

esse  sapientorem  legibus  " — No  man  ouglit  to  be  wiser  than  the 
law,  which  is  the  perfection  of  reason. 

If  a  man  have  power  to  grant  an  estate  in  fee  simple  he 
has  power  to  demise  the  same  estate  for  a  term  of  1000  years, 
or  any  less  estate  than  the  fee,  and  that  for  the  like  reason 
that  as  he  has  power  over  the  fee  which  is  the  greatest  estate, 
he  has  power  over  any  less  estate. 

All  cases  of  construction  and  intention  are  governed  by  this 
rule ;  as,  where  the  terms  of  a  deed  are  difficult  to  be  under- 
stood, they  are  construed  by  reference  to  other  like  cases. 
And,  as  where  the  words  of  a  will  are  in  themselves  at  vari- 
ance, the  intention  of  the  testator  is  considered  in  order  to  rec- 
oncile them.  So,  also,  one  clause  in  an  instrument  is  looked  at 
to  find  out  the  construction  to  be  put  upon  another  clause  in 
the  same  instrument,  and  a  man's  acts  at  one  time  are  looked 
to  as  guides  to  an  opinion  to  be  formed  of  his  acts  at  another. 

The  preamble  of  an  Act  of  Parliament  is  looked  to  as  a 
guide  to  the  construction  of  the  act  itself,  and  as  containing 
the  reason  for  the  enactment,  and  so  one  Act  of  the  Legislature 
is  looked  to  as  a  guide  in  the  construction  of  another.  One  cir- 
cumstance is  considered  to  induce  another  like  circumstance, 
and  all  reasonable  consequences,  and  so  in  similar  cases.  All 
argument  under  this  maxim  may  be  said  to  be  a  priori,  or 
from  cause  to  effect ;  as,  when  murder  is  imj)uted  to  any  one 
having  a  hatred  to  the  deceased,  and  an  interest  in  his  death  ; 
in  this  case  his  guilt  being  admitted,  his  hatred  and  interest 
serve  as  a  motive  and  to  account  for  the  commission  of  the 
crime. 


Co.  Litt.  10,  97,  191,  233;  5  Co.  119;  7  Co.  18;  11  Co.  27;  Jones  v. 
Barkley,  2  Doug.  694  ;  Alderson  v.  Langdale,  3  B.  &  Ad.  660  ;  Doe  v.  Sut- 
ton, 9  C.  &  P.  706;  Leith  v.  Irvin,  1  My.  &  K.  289;  ]\Lister  v.  Miller,  1 
Smith's  L.  C.  5  ed.  776;  Harden  v.  Clifton,  1  Q.  B.  524;  Mason  v.  Brad- 
ley, 11  M.  &  W.  593;  Hayward  v.  Bennett,  3  C.  &  B.  423;  Hutton  i\  War- 
ren, 1  M.  &  W.  475 ;  Lord  Say  and  Sele's  Case,  10  Mod.  46 ;  Coles  ®.  Hume^ 
8  B.  &  0.  568;  Smith  v.  Wilson,  3  B.  &  Ad.  728. 


MAXIM  XCIII. 


TJMjiis  %bi  remediiim  :  (Co.  Litt.  197.) 
Where  there  is  a  right  there  is  a  remedy. 

THE  principle  of  this  maxim  has  been  at  all  times  recog- 
nized in  this  country. 

Probably,  in  former  times,  it  was  more  looked  to  as  a  guide 
than  at  present,  inasmuch  as  the  remedies  provided  by  the  law 
were  not  then  so  numerous,  nor  so  well  understood  or  applied  in 
redressing  grievances,  and  first  principles  had  to  be  more  regard- 
ed in  the  recognition  of  an  evil,  and  the  finding  a  suitable  remedy^ 

At  the  present  day,  however,  remedies  seem  to  be  in  advance 
of  rights,  and  the  Legislature,  seems  to  anticipate  defects  by  its 
numerous  and  comprehensive  enactments ;  but  still  the  maxim 
exists,  and  is  ready,  when  necessary,  to  supply  every  defect 
and  lend  its  aid  to  redress  every  wrong. 

Though  the  remedy  here  alluded  to  may  be  said  to  apply  to 
all  possible  abuse  of  right  by  wrong,  by  whomsoever  and  from 
whatever  cause  arising,  it  may,  however,  be  more  particularly 
said  to  apply  to  all  those  cases  where  the  common  or  statute 
law  gives  a  right,  or  prohibits  a  wrong  ;  and  generally,  whether 
or  not  any  actual  damage  has  arisen  from  violation  of  the  right. 

It  must  be  borne  in  mind,  that  the  right  alluded  to  is  one  in 
contemplation  of  law,  and  not  what  any  one  chooses  to  think 
or  to  call  a  right,  and  therefore,  if  A.  have  a  house,  built  with- 
in twenty  years,  and  B.,  in  digging  out  the  foundation  for  an 
adjoining  house,  cause  injury  to  the  house  of  A.,  A.  has  no 
remedy  for  the  injury  so  done  to  his  house ;  for,  by  law  he  had 
not  acquired  a  right  as  against  the  owner  of  the  adjoining  land 
to  prevent  him  so  digging  out  such  foundation  ;  though  prob- 
ably A.  might,  in  such  case,  think  it  hard  tliat  his  house 
should  be  injured  by  uo  act  of  his  own,  and  that  therefore  his 


20a  LEGAL     MAXIMS. 

right  had  been  invaded,  and  that  there  ought  to  be  some  rem- 
edy for  him  in  such  a  case. 

As  this  maxim  shows  that  there  is  no  right  without  a  rem- 
edy, so  there  are  others  which  show  that  where  there  is  such 
right,  the  law  will  provide  the  remedy ;  as,  "  Lex  semper  dabit 
remedium ; "  and  also,  that  where  the  law  gives  anything  it 
gives  the  means  also  of  obtaining  it :  "  L'ou  le  ley  done  chose, 
la  ceo  done  remedie  a  vener  a  ceo."  It  has  been  said  that  re- 
dress for  injuries  is  the  right  of  every  Englishman.  The  words 
of  Magna  Carta,  spoken  in  the  person  of  the  king,  who,  in 
judgment  of  law,  says  Sir  Ed.  Coke,  is  always  present  in  all  his 
courts  repeating  them,  are  these,  "  Nulli  vendemus,  nulli  nega- 
bimus,  aut  differimus  rectum  vel  justitiam  ; "  and  therefore, 
every  subject  for  injury  done  to  him  in  honis,  in  terris,  vel 
])ersond^  by  any  other  subject  without  exception,  may  take  his 
remedy  by  course  of  law,  and  have  justice  and  right  for  the 
injury  done  to  him,  freely  without  sale,  fully  without  denial, 
and  speedily  without  delay. 

It  is  also  said,  that  by  possibility  there  might  be  a  wrong 
decision  in  the  House  of  Lords,  which  would  be  a  wrong  with- 
out a  remedy,  for  from  that  tribunal  there  is  no  appeal.  Our 
criminal  law,  in  those  cases  which  are  without  appeal,  may  also 
be  considered  as  affording  another  instance  of  the  apparent  in- 
application  of  the  maxim.  And  so  our  county  courts  in  those 
cases  in  which  there  is  no  appeal  from  the  decision  of  the  judge, 
and  in  like  cases  in  all  other  courts,  as  well  superior  as  inferior. 
And  so  it  is  with  all  authorities  and  powers  exercising  an  arbi- 
trary or  strict  legal  authority  without  reference  to  the  particu- 
lar circumstances  of  each  case ;  but  as  the  instances  just  given 
are  not  wrongs  in  contemplation  of  law,  they  probably  cannot 
be  said  to  contravene  the  maxim. 


Co.  Litt.  197;  2  Roll.  R.  17;  1  Bla.  Com.;  Magna  Carta,  c.  29;  2  Inst. 
55;  Johnstone  o.  Sutton,  1  T.  R.  512;  Doe  v.  Bridges,  1  B.  &  A.  859; 
Ashby  «.  White,  2  Ld.  Raym.  955;  Braithwaite  v.  Skinner,  5  M.  &  W.  327; 
Price  I'.  Belcher,  3  C.  B.  58;  Shepherd  v.  Hills,  11  Excli.  67;  St.  Pancras 
Vestry  v.  Batterbury,  26  L.  J.  243,  C.  P. ;  Tilson  v.  Warwick  Gas  Co.  4  B. 
&  C.  967;  Cane  v.  Chapman,  5  Ad.  &  E.  659  ;  Couch  v.  Steel,  3  Ell.  &  Bl. 
414  ;  Farrow  v.  Hague,  10  L.  T.  (N.  S.)  534. 


MAXIM   XCIV. 


Utile  per  inutile  non  vitiatur  :  (Dyer,  292.) 
That  which  is  useful  is  not  rendered  useless  by  that 
which  is  useless. 

THIS  rule  is  chiefly  applicable  to  what  is  called  surplusage, 
or  the  introduction  of  useless  and  unnecessary  words  in 
deeds,  contracts,  pleadings,  &c.,  which  words,  under  this  rule, 
may  be  rejected,  and  will  not  be  allowed  to  vitiate,  or  render 
useless,  the  instrument  in  which  they  are  so  introduced. 

Deeds  and  other  writings,  good  in  part  and  bad  in  part, 
whether  through  defect  in  the  consideration,  the  drawing  of 
the  instrument,  or  otherwise,  come  within  this  rule. 

And  so  it  is  as  to  misnomer  in  grants.  Though  there  be  a 
mistake  in  the  name  of  the  grantee  in  the  grant,  the  grant  is 
nevertheless  good.  As,  if  a  grant  be  to  J.  S.,  and  Em.  his  wife, 
and  her  name  is  Emelin ;  or  to  Alfred  Fitzjames,  by  the  name 
of  Etheldred  Fitzjames  ;  or  a  grant  be  to  Robert,  Earl  of  Pem- 
broke, where  his  name  is  Henry ;  or  to  George^  Bishop  of  Nor- 
wich, where  his  name  is  John ;  or  where  a  grant  be  to  a  mayor 
and  commonalty;  or  a  dean  and  chapter,  and  the  mayor  or 
dean  is  not  named  by  his  proper  name ;  or  a  grant  to  J.  S.,  wife 
of  W.  S.,  where  she  is  sole.  So  a  grant  to  W.  at  Stile,  by  the 
name  of  TV.  at  Goppe,  is  good  notwithstanding  the  mistake. 
All  these  and  such  like  grants  are  good  under  this  maxim,  and 
under  the  rule,  "Nihil  facit  error  nominis  cum  de  corpore 
constat ; "  notwithstanding  the  error  in  the  description.  So  a 
grant  of  lands  in  the  parish  of  St.  Andrew's,  Holborn,  in  the 
possession  of  W.  G.,  the  lands  being  in  the  parish  of  St.  Sep- 
ulchre's, though  in  the  possession  of  W.  G.,  is  not  good ;  but, 
if  the  grant  had  been  of  lands  in  the  possession  of  W.  G.,  in 
the  parish  of  St.  Andrew's,  it  would  have  been  good  by  reason 


20J:  LEGAL    MAXIMS. 

of  tlie  first  description  being  certain,  notwithstanding  tlie  false 
addition. 

Surplusage  in  pleading  does  not  vitiate  the  plea,  unless  it  is 
such  as  is  contrary  to  the  matter  before  pleaded,  and  then  it  is 
said  to  do  so,  because  it  cannot  be  known  what  answer  to  make 
to  the  plea. 

To  obviate  uncertainty  in  pleadings,  however,  and  pleadings 
framed  to  embarrass,  it  was  recently  enacted  that,  if  any  plead- 
ing be  so  framed  as  to  prejudice,  embarrass,  or  delay  the  fair 
trial  of  the  action,  the  opposite  party  may  apply  to  tlie  court 
or  a  judge  to  strike  out  or  amend  such  pleading,  <fec.,  and  this 
is  now  of  common  practice. 

In  divisible  contracts,  where  there  are  several  considera- 
tions for  separate  and  distinct  contracts,  one  legal  and  the 
other  illegal,  the  contract  supported  by  the  legal  consideration 
may  stand,  though  the  other  may  not.  The  invalidity  of  the. 
consideration  for  the  one  does  not  necessarily  imply  the  in- 
validity of  the  consideration  for  the  other.  And  where  there 
are  separate  and  independent  covenants  in  the  same  deed  the 
same  rule  applies,  and  the  invalidity  of  the  one  covenant  does 
not  necessarily  invalidate  the  other.  For,  it  is  said,  that  when 
a  good  thing  and  a  void  thing  are  put  together  in  the  same 
grant,  the  law  shall  make  such  a  construction  as  that  the  grant 
shall  be  good  for  that  which  is  good,  and  void  for  that  which 
is  void,  under  this  maxim,  "  Utile  per  inutile  non  vitiatur ; " 
and  also  in  accordance  with  the  rules,  "  Benigne  f aciendee  sunt 
interpretationes,  propter  simplicitatem  laicorum,  ut  res  magis 
valeat  quam  pereat ; "  "  Falsa  demonstratio  non  nocet,"  and 
''  De  minimis  non  curat  lex." 


G  Co.  65  ;  Co.  Litt.  3,  303  ;  Dyer,  119,  292,  503  ;  Shepp.  Touch.  236  ; 
2  Wils.  341 ;  Best  v.  Jolly,  1  Sid.  38 ;  C.  L.  P.  A.  1852,  s.  52 ;  1  Vin.  Abr. 
332 ;  Doe  v.  Pitcher,  6  Taunt.  309  ;  Janes  v.  Whitbread,  11  0.  B.  412  ; 
Wigg  V.  Shuttleworth,  13  East,  87 ;  Forsyth  v.  Biistowe,  22  L.  J.  70,  Exch. ; 
Hancock  v.  Noyes,  23  L.  J.  110,  Exch. ;  Collins  r.  Blautern,  1  Smith  L.  C. 
5  ed.  310;  Price  v.  Green,  16  M.  &  W.  346  ;  Hesse  v.  Stevenson,  3  B.  &  P. 
565. 


MAXIM  XCV. 


Yerha  chartariim  fortius  accipiuntur  contra  proferentem : 

(Co.  Litt.  30.) 
The  words  of  deeds  are  to  be  taken  most  strongly  against 

him  who  uses  them. 

THIS  maxim  is  subject  to  the  rule,  that  an  instrument  must 
be  construed  according  to  the  intention  of  the  j)arties, 
gathered  from  the  whole  instrument,  and  the  maxim  applies 
only  where  there  is  an  ambiguity,  requiring  explanation,  in  the 
language  of  the  instrument ;  and  where  the  construction  to  be 
put  upon  the  language  will  not  work  an  injury  to  third  parties. 

It  applies  to  deeds,  contracts,  pleadings,  and  other  written 
instruments,  private  statutes,  &c.,  and  may  be  exemplified  as 
follows : — A.,  being  owner  of  the  fee,  grants  to  B.  an  estate 
for  life,  without  saying  for  whose  life ;  this  shall  be  taken  to 
be  for  the  life  of  B.,  an  estate  for  a  man's  own  life  being  con- 
sidered greater  than  an  estate  for  the  life  of  another. 

Where  A.,  being  principal,  contracts  as  agent,  he  will  not 
be  allowed  to  sue  as  principal  without  first  divesting  himself 
of  the  character  of  agent ;  for,  where  a  man  assigns  to  himself 
the  character  of  agent  to  another,  whom,  he  names,  he  will  not 
be  permitted  at  pleasure  to  shift  his  position  and  to  declare 
himself  the  princijDal  and  the  other  a  mere  man  of  straw.  As 
where  a  man  makes  a  purchase,  pays  a  deposit,  and  agrees  to 
comply  with  the  conditions  of  sale  as  agent  for  another,  and  in 
the  mere  character  of  agent ;  this  agreement  will  be  taken  most 
strongly  against  him  when  he  seeks  to  take  the  benefit  of  the 
contract  for  himself,  as  principal  and  not  as  agent ;  to  show 
that  he  was  really  treating  in  the  character  which  he  assigned 
to  himself  at  the  time  of  purchase ;  so  in  all  cases  of  contracts 
in  which  the  skill  or  solvency  of  the  person  named  as  principal 


200  LEGAL    MAXIMS. 

may  reasonably  be  considered  as  a  material  ingredient  in  the 
contract. 

The  governing  principle  under  tliis  maxim,  in  regard  to 
contracts,  as  against  the  party  making  them,  seems  to  be,  that 
he  who  makes  an  instrument  should  take  care  so  to  express  his 
own  liability  as  not  to  bind  himself  beyond  his  intention,  and 
that  the  party  who  receives  an  instrument  shall  have  a  con- 
struction put  upon  it  in  his  favor,  because  the  words  of  the  in- 
strument are  not  his,  but  those  of  the  other  party.  A  distinc- 
tion is  suggested  between  an  ordinary  contract  and  a  guaranty, 
the  latter  being,  not  a  contract  by  the  party  for  payment  of  his 
own  debt,  or  on  his  own  behalf,  but  for  the  debt  and  on  behalf 
of  a  third  person,  and  that  in  such  case  there  is  a  duty  on  the 
party  taking  the  guaranty  to  see  that  it  is  so  expressed  that 
the  party  giving  it  be  not  deceived. 

The  maxim  must,  however,  be  understood  with  this  limita- 
tion, that  no  wrong  be  thereby  done,  for  it  is  a  rule,  "  Quod 
legis  constructio,  non  facit  injuriam."  And  therefore  it  is 
said,  if  tenant  for  life  grants  the  land  he  so  holds  for  life  to 
another,  without  saying  for  what  time,  this  must  be  taken  for 
an  estate  for  his  own  life,  and  not  for  that  of  the  grantee,  for 
otherwise  there  would  be  a  forfeiture. 

A  distinction  is  also  made  between  a  deed  poll  and  an  in- 
denture, the  former  being  executed  by  the  grantor  aJone,  and 
the  words  used  his  only ;  the  latter  by  both  parties,  and  the 
words  the  words  of  both.  And  further,  that  this  rule,  being 
one  of  rigor,  is  never  to  be  resorted  to  but  when  all  other  rules 
of  exposition  fail. 

Co.  Litt.  36,  113,  183,  264,  303;  Noy  Max.  48;  Bac.  Abr.  Covenant; 
Finch  Law,  6;  Plowd.  134;  2  Bla.  Com. ;  Bristowe  v.  "Whitmore,  9  W.  R. 
621;  Udell  v.  Atherton,  7  Jur.  (N.  S.)  779;  Howard  v.  Gcssett,  10  Q.  B. 
383;  Mason  -o.  Pritchard,  12  East,  227;  Nicholson  «.  Paget,  1  C.  &  M.  68; 
Webb  V.  Plummer,  2  B.  &  Aid.  752;  Bickerton  v.  Burrell,  5  M.  &  S.  383; 
Rayner  v.  Grote,  15  M.  &  W.  365;  West  London  R.  C.  v.  L.  &  N.  W.  R. 
C,  11  C.  B.  309  ;  Dann  v.  Spurrier,  3  B.  &  P.  390;  Long  v.  Bowring,  10 
L.  T.  (N.  S.)  683. 


MAXIM  XCVI. 


Verba  generalia  restringunter  ad  liabilitatem  rei  vel  aptitud- 

inem  personcB  :  (Bac.  Max.  Reg.  10.) 
General  words  are  restrained  according  to  the  nature  of 

the  thing  or  of  the  i)erson. 

IN  considering  the  meaning  to  be  given  to  general  words  in 
an  instrument,  the  general  scope  of  the  document,  in  per- 
son, thing  and  intent,  is  to  be  borne  in  mind,  and  the  general 
words  are  to  be  restrained  so  as  to  give  effect  to  the  particular 
and  positive  language,  meaning  and  intent  of  the  instrument. 

Where  a  railway  company  bound  themselves  to  work  their 
railway  efficiently  and  indemnify  the  covenantees  from  any 
damage  or  forfeiture  that  would  result  from  a  failure  so  to 
work  the  line  under  the  Act  of  Parliament  constituting  the 
company,  it  was  held  that  they  satisfied  that  obligation  by 
working  it  in  a  reasonable  manner  and  so  as  to  indemnify,  and 
that  they  were  not  bound  to  work  passenger  trains. 

Where  A,  purchased  an  estate  charged  with  an  annuity  to 
B.,  and  as  part  of  the  bargain  covenanted  to  pay  the  annuity 
and  indemnify  the  vendor,  a  declaration  on  the  covenant  alleg- 
ing for  breach  non-j)ayment  of  the  annuity,  without  adding 
that  the  vendor  had  been  damnified,  was  held  sufficient,  and  it 
was  there  said  that  in  construing  the  covenant  the  court  were 
to  look  at  the  subject  of  the  contract,  and  consider  all  the 
terms  of  the  deed  ;  that  a  positive  covenant  might  sometimes 
be  controlled  or  qualified  by  other  clauses  in  the  deed ;  but 
that  when  there  is  a  positive  general  covenant,  that  covenant 
is  not  controlled  by  subsequent  clauses  unless  the  inference  is 
irresistible  that  the  parties  did  not  intend  to  make  a  general 
covenant,  and  that  it  could  not  be  inferred  from  tlie  indemnity 
in  that  deed  that  it  was  the  intent  of  the  parties  thei-eby  to  re- 
strain or  qualify  the  positive  covenant  to  pay. 


208  LEGAL     MAXIMS. 

Where  in  a  declaration  on  a  policy  of  assurance  whereby  a 
ship  was  insured  "  at  and  from  New  York  to  Quebec,  during 
her  stay  there,  thence  to  the  United  Kingdom ;  the  said  ship 
being  warranted  to  sail  from  Quebec  on  or  before  the  1st  of 
November,  1853  : "  it  was  held  that  there  was  no  limitation  of 
time  as  to  the  voyage  between 'New  York  and  Quebec,  but  that 
as  to  the  voyage  from  Quebec  to  the  United  Kingdom  the  un- 
derwriters were  not  responsible,  unless  the  vessel  sailed  from 
Quebec  on  or  before  the  1st  of  November,  1853 ;  and  it  was 
there  stated  that  the  words,  "  the  ship  being  warranted  to  sail 
from  Quebec  on  or  before  the  1st  of  November,  1853,"  could 
not  be  understood  in  their  literal  sense,  because  they  would 
then  amount  to  a  warranty  that  the  vessel  should  arrive  at 
Quebec  and  sail  thence  on  or  before  the  1st  of  November,  1853, 
so  that  the  vessel  being  lost  on  the  intermediate  voyage  from 
New  York  to  Quebec,  the  underwriters  would  not  be  liable, 
which  could  not  be  the  intention  of  the  parties.  Therefore, 
that  construction  must  be  rejected,  and  the  natural  construc- 
tion seemed  to  be  that  it  was  a  warranty  to  sail  from  Quebec 
on  or  before  the  1st  of  November,  1853,  if  the  vessel  arrived 
there  by  that  time. 

A  bond  upon  condition,  is  a  forcible  illustration  of  the 
maxim,  the  bond  itself  being  absolute,  controlled,  however,  by 
the  condition.  As,  where  a  bond  was  given  to  an  employer 
conditioned  for  the  due  accounting  by  a  clerk,  with  a  recital 
that  he  was  engaged  at  a  salary  of  100^.  a  year :  the  salary 
being  subsequently  changed  to  a  payment  by  commission ;  it 
was  held  that  the  recital  controlled  the  condition,  and  that  the 
obligor  was  discharged  by  the  change  of  mode  of  remuneration. 


Bac.  Max.  Reg.  10 ;  Co.  Litt.  43 ;  3  Inst.  7G  ;  Sbepp.  Touch.  88  ;  Plowd. 
160;  1  T.  R.  703;  1  Cowp.  12,  299  ;  Holland  v.  Lea,  9  Exch.  430;  Borro- 
daile  v.  Hunter,  5  Scott,  431;  Saward  v.  Anstey,  2  Bing.  519:  Baines  and 
others  v.  Holland,  10  Exch.  802 ;  Hesse  v.  Stevenson,  3  B.  &  P.  565 ;  North 
Western  R.  C.  v.  Whinray,  10  Exch.  77  ;  Lyndon  v.  Stanbridge,  2  H.  &  N. 
51 ;  "West  London  R.  C.  v.  London  &  North  Western  R.  C.  11  C.  B.  328, 
339,  356;  Lord  Arlington  v.  Merricke,  2  Saund.  411. 


MAXIM  XCVII. 


Verba  relata  lioc  maxime  operaiitur  per  referentiam  ut  in  eis 
in  esse  mdentwr :  (Co.  Litt.  359.) 

Words  to  which  reference  is  made  in  an  instrument  have 
the  same  effect  and  operation  as  if  they  were  in- 
serted in  the  instrument  referring  to  them  ;  or,  as 
the  same  maxim  is  more  succinctly  expressed, 

Verba  illata  in  esse  videntur  : 

Words  referred  to  are  considered  as  incori)orated. 

r|lHIS  rule  applies  as  well  to  cases  where  a  particular  clause 
-*-  in  an  instrument  refers  to  another  clause  in  the  same  in- 
strument, as,  to  parcels,  schedules,  plans,  &c.,  as  it  does  to 
cases  where  reference  is  made  in  the  instrument  to  some  deed, 
plan,  schedule,  index,  will,  &c.,  altogether  disconnected  from 
the  instrument  in  which  the  reference  thereto  is  made.  The 
following  examples  will  suffice  to  show  the  meaning  of  the 
maxim. 

A  deed  referring  to  furniture,  fixtures,  machinery,  &c.,  in 
a  schedule,  being  a  totally  distinct  document,  or  to  trusts  de- 
clared in  another  deed ;  a  deed  whereof  one  clause,  for 
brevity,  refers  to  another  clause  with  a  mutatis  mutanrlis ; 
and  affidavits  referring  to  a  deed,  or  other  document,  are  all 
within  the  rule. 

Where  a  plea  was  verified  by  affidavit  which  referred  to 
the  plea,  the  plea  being  entitled  in  the  cause,  the  affidavit  was 
held  sufficient,  though  not  specially  entitled  in  the  cause. 
And  in  that  case  it  was  observed  that  the  court  generally  re- 
quires the  affidavit  to  be  entitled  in  the  cause,  that  it  may  be 
sufficiently  certain  in  what  cause  it  is,  so  as  in  case  of  need  to 
admit  an  indictment  for  perjury  ;  but  that  the  affidavit  in 
question  referring  to  the  plea  as  annexed,  which  plea  was  so 
entitled,  it  amounted  to  the  same  thing. 
14 


^210  LEGAL     MAXIMS. 

A  covenant  in  an  under-lease  to  perform  all  the  covenants  in 
the  original  lease,  except  to  pay  rent  and  insure,  will,  in  effect, 
comprise  a  covenant,  contained  in  the  lease,  to  paj  all  rates 
and  taxes  whatsoever,  and  may  render  tl^e  under  lessee  liable 
to  rates  for  extraordinary  works  of  a  permanent  nature,  as  for 
drainage  and  such  like,  according  to  the  terms  of  the  covenant 
in  the  original  lease. 

A  deed  conveyed  a  piece  of  land  forming  part  of  a  close, 
by  reference  to  a  schedule  annexed.  The  schedule  described 
the  land  in  one  column  as  153  b;  in  a  second  column  as,  a 
small  piece  marked  on  the  plan  ;  in  a  third  column  as  being  in 
the  occu]3ation  of  J.  E. ;  and  in  a  fourth  as  34  perches.  At 
the  time  of  the  contract  a  line  was  drawn  upon  the  plan  as 
the  boundary  line  dividing  the  piece  153  b,  from  the  rest  of 
the  close  of  which  it  formed  part.  The  plan  was  drawn  to  a 
a  scale,  but  upon  measurement  of  the  land  it  was  found  to  be 
incorrect,  and,  153  b,  contained  within  the  line  so  dravtoi,  less 
than  34  perches  according  to  actual  measurement  on  the  plan, 
and  27  perches  only  according  to  actual  measurement  of  the 
land ;  it  was  held  that  the  statement  that  the  piece  of  land 
conveyed  contained  34  perches,  was  mQv&\j  falsa  demonstration 
the  prior  portion  of  the  description  being  sufficient  to  con- 
vey it,  and  that  the  deed  passed  only  the  portion  of  land 
actually  marked  off  on  the  plan  as  measured  by  the  scale. 
And  the  case  was  determined  by  the  application  of  the  max- 
ims, verba  illata  in  esse  videntur,  and  falsa  demonstratio  / 
according  to  the  former  of  w^hich  it  was  considered  the  same 
thing  as  if  the  map  or  plan  referred  to  in  the  deed  had  been 
actually  inserted  therein,  and  according  to  the  latter,  that  the 
34  perches  having  no  relation  to  the  plan  must  be  taken  to 
mean  34  perches  by  admeasurement,  and  that  definition  being 
sufficiently  certain,  no  subsequent  erroneous  addition  would 
vitiate  it. 


Co.  Litt.  359;  2  Bla.  Com. ;  Dyer  v.  Green,  1  Exch.  71 ;  Reg.  v.  Wa- 
verton,  17  Q.  B.  570 ;  Roe  v.  Tranmar,  Willes,  682  ;  Brain  v.  Harris,  10 
Exch.  926;  Duke  of  B.  v.  Slowman,  8  C.  B.  617;  Taylor  v.  Bnllen,  5 
Exch.  779;  Doughty  v.  Bowman,  11  Q.  B.  454;  Gahvay  v.  Baker,  5  CI.  & 
Fin.  157;  Sweet  v.  Seager,  3  C.  B.  (N.  S.)  119;  Piggott  v.  Stratton,  29  L. 
J.  1,  Ch.  ;  Prince  v.  Nicholson,  5  Taunt.  333 ;  Llewellyn  r.  Earl  of  Jersey 
and  another,  11  M.  &  W.  183. 


MAXIM  XCVIII. 


Yigilantihus,  et  non  dormientibus,  jura  suhveniimt :  (Wing. 

692.) 
The  vigilant,  and  not  the  sleepy,  are  assisted  by  tlic 

laws. 

IN  all  actions,  suits,  and  other  proceedings  at  law  and  in 
equity,  the  diligent  and  careful  actor  is  favored,  to  the 
prejudice  of  him  who  is  careless  and  neglectful.  And  this  ap- 
plies as  well  to  the  limitation  of  suits  for  the  recovery  of  prop- 
erty in  the  possession  of  others  through  the  default  of  the 
rightful  owner,  as  to  the  refusing  aid  to  suitors  in  respect  of 
losses  sustained  by  them  through  their  own  neglect  or  care- 
lessness. 

All  statutes,  also,  made  for  the  limitation  of  actions, 
whether  as  respects  real  or  personal  property,  persons,  or 
things,  are  made  in  furtherance  of  the  principle  of  this  maxim  ; 
not  so  much,  however,  with  a  view  to  assisting  the  vigilant,  as 
to  discouraging  those  who  sleep  on  their  rights,  by  preventing 
their  setting  up  stale  demands,  to  the  injury  and  annoyance  of 
those  who  are  apparently  in  the  peaceable  enjoyment  of  their 
rights. 

As  to  the  limitation  of  real  actions  with  reference  to  this 
maxim,  it  is  said  that  there  is  a  time  of  limitation  of  action 
beyond  which  no  man  shall  avail  himself  of  the  possession  of 
himself  or  his  ancestors,  or  take  advantage  of  the  wrongful 
possession  of  his  adversary ;  for,  if  a  man  be  negligent  for  a 
long  and  unreasonable  time  in  the  prosecution  of  what  he  con- 
siders to  be  his  rights,  the  law  refuses  afterwards  to  lend  him 
any  assistance  to  recover  the  possession  of  that  to  which  he 
considers  himself  otherwise  entitled  ;  both  with  a  view  to  pun- 
ish him  for  his  neglect,  and  also  because  it  is  to  be  presumed 
that  the  possessor  or  supposed  wrong-doer  has  in  such  a  length 


212  LEGAL    MAXIMS 

of  time  procured  a  legal  title,  otherwise  he  would  have  been 
sooner  sued. 

In  the  purchase  of  goods  great  care  is  necessary  on  the 
part  of  the  purchaser  in  ascertaining  that  the  goods  contracted 
for  are  delivered  according  to.  the  contract ;  and  if  not,  then 
immediately  to  return  them  and  rescind  the  contract.  If  the 
nature  of  the  goods  require  it,  the  purchaser  should  take  care 
that  they  are  warranted  perfect ;  for,  unless  the  seller  express- 
ly warrant  the  articles  sold,  or  knew  of  some  defect  and  used 
art  to  disguise  it,  the  purchaser  cannot,  in  case  of  defect,  re- 
cover back  the  price.  Nor  will  a  general  warranty  extend  to 
guard  against  defects  which  are  plain  and  obvious  to  a  man's 
senses,  or  where  the  false  representation  is  known  to  the  pur- 
chaser. Therefore,  if  a  man  purchase  an  article  with  a  visible 
defect,  he  has  no  remedy,  although  the  vendor  warranted  it 
perfect.  ISTor  does  the  law,  on  a  sale  of  goods  by  sample,  with 
a  warranty  that  the  bulk  shall  agree  with  the  sample,  raise  an 
implied  warranty  that  the  commodity  shall  be  merchantable  ; 
and  so,  though  a  fair  price  be  given  for  the  goods,  yet,  should 
they  turn  out  not  to  be  merchantable  in  consequence  of  a  la- 
tent defect  which  existed  at  the  time  of  the  sale,  but  which  was. 
unknown  to  the  seller,  the  purchaser  has  no  remedy  against 
them.  So,  if  on  a  warranty  on  the  sale  of  goods,  that  the  bulk 
shall  accord  with  the  sample,  and  no  stipulation  be  inserted  in 
the  sale  note  that  the  goods  shall  be  equal  to  the  sample,  nO' 
parol  evidence  is  admissible  to  make  such  verbal  stipulation  a 
part  of  the  contract,  unless  it  can  be  proved  that  the  sample 
was  fraudulently  exhibited  to  deceive  the  purchaser,  and  tliat 
the  vendor  has  declared  upon  a  deceitful  representation.  And 
where  goods  are  sold  w^ith  all  faults,  the  seller  is  not  liable  to 
an  action  in  respect  of  latent  defects  which  were  known  to 
him,  but  not  disclosed  at  the  time  of  sale  ;  unless  he  used  some 
artifice  to  conceal  them  from  the  buyer. 


3  Inst.  690;  Wing.  692;  1  S:ilk.  210;  Roll.  Abr.  90;  Noy  Max.  c.  42; 
8  Bla.  Com.  ;  Adamson  v.  Jarvis,  4  Bing.  78 ;  Pasley  v.  Freeman,  3  T.  R. 
58;  16  Jac.  1,  c.  21;  21  Jac.  1,  c.  16;  3  &  4  Will.  4.  c.  42;  19  &  20  Vict, 
c.  97;  Roswell  D.  Vaughan,  Cro.  Jac.  197;  Baglehole  r.  Walters,  3  Campb. 
154;  Morley  v.  Attenborough,  3  Exch.  500;  Bluett  v.  Osborn,  1  Stark. 
384;  Parkinson  v.  Lee,  2  East,  813;  Re  Desborongh,  10  L.  T.  (N.  S.)  916. 


MAXIM  XCIX. 


Volenti  nonfit  injuria :  (Wing.  Max.  482.) 

That  to  which  a  man  consents  cannot  be  considered  an 
injury. 

rilHIS  maxim  applies  principally  to  those  cases  where  a  man 
-*-  suffers  an  injury  for  wliich  he  has  a  claim  for  compensa- 
tion, but  which  claim  he  is  considered  as  waiving  by  acqui- 
escing in,  or  not  objecting  to,  the  injury  committed ;  as,  when 
a  man  connives  at  or  condones  the  adultery  of  his  wife,  he  can- 
not in  such  case  obtain  damages  from  the  seducer,  nor  sustain  a 
petition  for  divorce.  Or,  where  a  man  is  a  joint  contributor  to 
the  injury  he  has  received;  as,  where  it  has  resulted  partly 
from  his  own,  and  partly  from  another's  negligence.  It  ap- 
plies also  to  voluntary  payments,  voluntary  releases  and  relin- 
quishment of  rights,  and  indeed  to  all  those  acts  which  a  man 
does,  or  consents  to,  whereby  he  receives  some  injury,  or  loses 
some  benefit  which  he  might,  by  the  exercise  of  his  own  free 
will  and  discretion,  have  avoided. 

A  man  cannot  complain  of  an  injury  which  he  has  received 
through  his  own  want  of  prudence  and  foresight.  He  cannot 
recover  damages  for  an  injury  which,  but  for  his  own  negli- 
gence or  wrongful  act,  would  not  have  happened.  Therefore, 
damages  cannot  be  recovered  against  a  railway  company  for  in- 
juries to  persons  trespassing  upon  the  line  of  railway,  even 
though  there  should  have  been  negligence  in  the  management 
of  the  train.  Nor  can  a  man  recover  damages  for  injuries  sus- 
tained by  him  in  committing  a  trespass ;  as  by  climbing  up  to 
get  into  a  cart ;  or  by  tumbling  into  a  hole  in  his  neighbor's 
field.  Nor  for  injuries  sustained  by  him  in  running  against  an 
obstruction  negligently  placed  in  the  road  by  the  defendant,  if 
he  were  riding  at  an  improper  rate,  or  was  intoxicated,  or  could 
have  avoided  the  injury  by  riding  with  ordinary  and  j)ro2)er 
care. 


214  LEGAL    MAXIMS. 

But  this  contributory  negligence  will  not  disentitle  a  plain- 
tiff to  recover  damages  unless  it  were  sucli  that,  but  for  that 
his  negligence,  the  negligent  act  causing  the  injury  would  not 
have  happened ;  nor,  if  the  party  complained  of  might,  by  the 
exercise  of  due  care  on  his  part,  have  avoided  the  consequences 
of  the  carelessness  on  the  part  of  the  plaintiff.  Thus,  where  a 
man  negligently  left  an  ass  in  a  public  highway,  tied  together 
by  the  fore  feet,  and  the  defendant  carelessly  drove  over  and 
killed  it,  in  the  day  time,  the  ass  being  unable  to  get  out  of  the 
way :  it  was  held  that  the  misconduct  of  the  plaintiff  in  leav- 
ing the  ass  in  the  highway  was  no  answer  to  the  action,  the  de- 
fendant being  bound  to  go  along  the  road  with  care ;  as,  were 
it  otherwise,  a  man  might  justify  driving  over  goods  left  in  th& 
street ;  or  over  a  man  lying  there  asleep ;  or  against  a  carriage 
going  on  what  is  commonly  called  the  wrong  side  of  the  road. 
"Where  one  has  wrongfully  taken  possession  of  the  property  of 
another  and  converted  it  to  his  own  use,  the  owner  may  either 
disaffirm  the  act  and  treat  him  as  a  wrong-doer,  or  he  may 
affirm  his  act  and  treat  him  as  his  agent ;  but,  if  he  have  once 
affirmed  his  act  as  agent,  he  cannot  afterwards  treat  him  as  a 
wrong-doer. 

So  it  is  as  to  any  right  of  action  or  defense  to  an  action 
which  a  man  has,  and  which  he  chooses  to  relinquish  ;  as  a  right 
of  action  for  a  debt  for  which  a  creditor  chooses  to  accept  a 
composition ;  a  right  of  action  by  a  tenant  for  an  illegal  dis- 
tress ;  a  right  of  action  for  trespass  or  other  injury  ;  a  defense 
under  the  statute  of  limitations ;  a  right  of  way,  or  an  ease- 
ment of  air,  light,  or  other  like  privilege,  the  benefit  of  all  of 
which  rights  a  man  may,  if  he  will,  waive  or  relinquish,  though 
to  his  own  injury. 


Wing.  Max.  482  :  Plowd.  501 ;  Bize  v.  Dickinson,  1  T.  R.  286  ;  Davies 
V.  Mano,  10  M.  &  W.  5i9 ;  Singleton  v.  E.  C.  R.  Co.,  7  C.  B.  (N.  S.)  287 ; 
Mayor  of  Colchester  v.  Brook,  7  Q.  B.  376 ;  Jordin  v.  Crump,  8  M.  &  W. 
787  ;  Lygo  v  Newbold,  9  Exch.  306;  Valpey  v.  Manley,  1  C.  B.  602  ;  But- 
terfleld  v.  Forrester,  11  East,  CO;  Greenland  v..  Chaplin,  5  Exch.  248,- 
Strick  V.  De  Mattos,  10  L.  T.  (K  S.)  593 ;  Brewer  v.  Sparrow,  7  B.  &  C.  310 ;. 
Lythgoe  v.  Vernon,  29  L.  J.  164,  Exch. 


MAXIM  C. 


Voluntas  reputdbatur  pro  facto :  (3  Inst.  09.) 
The  will  is  to  be  taken  for  the  deed. 

THIS  is  the  old  maxim  with  respect  to  treasonable  offenses  : 
"  In  criminalibus  voluntas  reputabitiir  pro  facto  " — In 
criminal  offenses  the  will  shall  be  taken  for  the  deed.  To  con- 
stitute which  offense  of  treason,  the  intention  alone  is  sufficient. 

In  treasonable  offenses,  that  is,  the  compassing  or  imagining 
the  death  of  the  sovereign,  the  law  is  more  strict  than  in  of- 
fenses concerning  the  death  of  a  subject ;  and  in  such  cases  the 
rule  is,  "  Voluntas  reputabitur  pro  facto,"  and,  "  Scribere  est 
agere."  Between  subject  and  subject,  however,  the  intent 
must  be  more  manifest,  and  must  be  accompanied  by  undenia- 
ble overt  acts. 

An  assault  with  intent  to  rob,  without  taking  money  or 
goods,  is  not  felony ;  though  the  contraiy  was  once  holden. 

An  expressed  intention  to  commit  murder,  without  any 
overt  act,  is  not  felony  ;  though  with  an  overt  act,  under  this 
maxim,  it  would  be.  As,  where  a  servant  having  stolen  his 
master's  goods,  went  to  his  bedside  and  attempted  to  cut  his 
throat,  and  thinking  he  had  done  so,  left  him  and  fled :  he  was 
adjudged  to  be  hanged.  For  this  overt  act  was  evidence  of  the 
intent ;  and,  in  crimes,  the  intent  and  not  the  consequence  is 
to  be  regarded.  "  Voluntas  in  delictis,  non  exitus,  spectatur." 
As  also,  where  one,  knowing  there  to  be  a  crowd  of  persons  in 
the  street  adjoining  where  he  was,  threw  a  stone  over  the  wall 
amongst  them,  thinking  to  frighten  them,  but  without  intent 
to  kill,  but  whereby,  nevertheless,  one  was  killed ;  this  was  ad- 
judged to  be  manslaughter  only ;  for  there  was,  in  that  case, 
no  intent  to  murder. 

The  intent  will  be  gathered  from  all  the  surrounding  cir- 
cumstances.    As,  where  on  a  cliarge  of  murder,  the  deceased 


21G  LEGAL     MAXIMS. 

]iavmg  been  found  tied  hand  and  foot,  and  with  something 
forced  into  liis  throat,  apparently  to  prevent  outcry,  but  wliere- 
by  he  had  been  suffocated,  and  the  state  of  the  premises  where 
he  was  found  showing  that  a  burglary  had  been  committed ; 
the  evidence  against  the  prisoner  being  a  chain  of  circum- 
stances tending  to  identify  him  as  one  of  two  persons  engaged 
in  the  burglary,  the  other  not  having  been  apprehended ;  and 
the  jury  being  satisfied  that  the  prisoner  had  been  engaged  in 
the  burglary,  and  was  a  party  to  the  violence  on  the  person  of 
the  deceased,  they  were  directed  to  find  him  guilty  of  murder, 
and  which  they  accordingly  did.  The  question  of  intent  runs 
through  all  acts  of  a  criminal  nature.  Thus,  where  a  man, 
being  indicted  for  having  feloniously  broken  and  entered  a  shop 
with  intent  to  commit  a  felony,  was  proved  to  have  made  a 
hole  in  the  roof  of  the  shop,  with  intent  to  enter  and  steal :  he 
was  held  to  have  been  properly  convicted  of  misdemeanor  for 
attempting  to  commit  a  felony. 

So  a  man  who  supplies  a  noxious  drug  to  a  woman,  with  the 
intent  that  the  woman  shall  take  it  for  the  purpose  of  procur- 
ing a  miscarriage,  is  guilty  of  a  misdemeanor,  though  the 
woman  herself  did  not  intend  to  take  nor  did  take  the  noxious 
drug. 

An  infant  under  the  age  of  seven  years,  however,  is  not 
Avithin  the  meaning  of  the  maxim,  not  being  considered  as  hav- 
ing the  capacity  to  intend  to  commit  the  crime  of  felony.  And 
a  child  under  fourteen  years,  indicted  for  murder,  must  be 
proved  to  have  been  conscious  of  the  nature  of  the  act  com- 
mitted, in  order  to  render  it  guilty  of  murder. 


3  Inst.  5,  .57,  69 ;  2  Roll.  R.  89 ;  24  &  25  Vict.  c.  100  ;  Marsh  v.  Loader, 
14  C.  B.  (N.  S.)  535;  Reg.  v.  Bain,  8  Jur.  (K  S.)  418;  5  L.  T.  (N.  S.)  647; 
Reg.  V.  Horsey,  3  F.  &  F.  287  ;  Reg.  v.  Vamplew,  3  F.  &  F.  520  ;  Reg.  v. 
Franz,  2  F.  &  F.  580;  Reg.  v.  Hillman,  9  L.  T.  (N.  S.)  518;  Reg.  v.  Hore, 
3  F.  &  F.  315  ;  Kerkin  v.  Jenkins,  9  Cox  C.  0  311,  Q.  B.;  Reg.  v.  Moore, 
3  L.  T.  (N.  S.)  710;  Reg.  ».  Holt,  3  L.  T.   (N.  S.)  310. 


PART  II. 
EIGHT  HUNDRED  MAXIMS, 

WITH 

TRANSLATIONS. 


TABLE 

OF    ALL 

USEFUL    LEGAL    MAXIMS, 

WITH  TEANSLATIONS. 


1.  Absoluta  sententia  expositione  non  indiget :  (2  Inst.  533.) 

— An  absolute  sentence  requires  no  exposition. 

2.  Abundans  cautela  non  nocet :  (11  Co.  6.) — Abundant  cau- 

tion does  no  injury. 

3.  Accessorium   non   ducit,    sed   sequitur   suum   principale : 

(Finch  Law,  128.) — The  accessory  does  not  lead,  but 
follows  its  principal :  (Maxim  1.) 

4.  Accessorius  sequitur  naturam  sui  principalis :  (3  Inst.  139.) 

— An  accessory  follows  the  nature  of  its  principal. 

5.  Aceusare  nemo  se  debet,  nisi  coram  Deo :  (Hawke,  222.) — 

No  one  is  compelled  to  accuse  himself,  except  before 
God. 

6.  Accusator  post  rationabile  tempus  non  est  audiendus,  nisi 

se  bene  de  omissione  excusaverit :  (Moor.  817.) — An  ac- 
cuser is  not  to  be  heard  after  a  reasonable  time  unless 
he  can  account  satisfactorily  for  the  delay. 

7.  A  communi  observantia  non  est  recedendum,  et  minime 

mutandte  sunt  quae  certam  interpretationem  habent : 
(Wing.  Max,  75G.) — Common  observance  is  not  to  be 
departed  from,  and  things  which  have  a  certain  mean- 
ing are  to  be  changed  as  little  as  possible. 


'220  LEGAL     MAXIMS. 

8.  Acta  exteriora  indicant  interiora  secreta :  (8  Co.  146.) — 

External  actions  sliow  internal  secrets. 

9.  Actio  personalis  moritnr  cum  persona :  (Noy  Max.  20.) — 

A  personal   right    of    action    dies   with   the   person  : 
(Maxim  2.) 

10.  Actio  non  datur  non  damnificato :  (Jenk.  Cent.  69.) — An 

action  is  not  given  to  him  who  is  not  injured. 

11.  Actionum  genera  maxime  sunt   servanda :    (Lofft's  Kep. 

460.) — The  correct  form  of  action  should  be  followed. 

12.  Actori  incumbit  onus  probandi :  (Hob.  103.) — The  weight 

of  proof  lies  on  a  plaintiff. 

13.  Actus  curiae  neminem  gravabit :  (Jenk.  Cent.  118.) — An 

act  of  the  court  hurts  no  one :  (Maxim  3.) 

14.  Actus  Dei  vel  legis  nemini  facit  injuriam  :  (5  Co.  87.) — 

The  act  of  God  or  of  law  is  prejudicial  to  no  one : 
(Maxim  4.) 

15.  Actus  inceptus,  cujus  perfectio  pendet  voluntate  partium, 

revocari  potest ;  si  autem  pendet  ex  voluntate  tertiae 
personse,  vel  ex  contingenti,  revocari  non  potest :  (Bac. 
Max.  Reg.  20.) — An  act  already  begun,  the  completion 
of  which  depends  on  the  will  of  the  parties,  may  be  re- 
called ;  but,  if  it  depend  on  the  consent  of  a  third  per- 
son, or  on  a  contingency,  it  cannot. 

16.  Actus  judiciarius  coram  non    judice  irritus  habetur ;   de 

ministeriali  autem  a  quocunque  provenit  ratum  esto : 
(Loift's  Rep.  458.) — A  judicial  act  done  in  excess  of 
authority  is  not  binding ;  otherwise  as  to  a  ministerial 
act. 

17.  Actus  non  facit  reum,  nisi  mens  sit  rea  :  (3  Inst.  107.) — 

The  act  iLself  does  noc  constitute  guilt  unless  done  with 
a  guilty  intent :  (Maxevi  5.) 

18.  Ad  ea  quae  frequentius  accidunt  jura  adaptantur  :  (2  Inst. 

137.) — The  laws  are  adapted  to  those  cases  which  most 
frequently  occur  :  (Maxim  6.) 


LEGAL     MAXIMS.  221 

19.  Adjournamentum  est  ad  diem  dicere  seu  diem  dare :  (4 

Inst.  27.) — An  adjournment  is  to  appoint  a  day  or  to 
give  a  day. 

20.  Ad  officium  jiisticiariorum  spectat,  uni  cuiqne  coram  eis 

placitanti  justitiam  exliibere  :  (2  Inst.  451.) — It  is  the 
duty  of  Justices  to  administer  justice  to  every  one  seek- 
ing it  from  them. 

21.  Ad  proxinuim  antecedens  fiat  relatio,  nisi  impediatur  sen- 

tentia:  (Jenk.  Cent,  180.) — The  antecedent  has  relation 
to  that  which  next  follows  unless  thereby  the  meaning 
of  the  sentence  is  destroyed. 

22.  Ad  qusestionem  facti  non  respondent  judices ;  ad  quses- 

tionem  juris  non  respondent  juratores  :  (Co.  Litt.  295.) 
— To  questions  of  fact  judges  do  not  answer  :  To  ques- 
tions of  law  the  jury  do  not  answer  :  (Maxim  7.) 

23.  ^dificare  in  tuo  proprio  solo  non  licet  quod  alteri  noceat : 

(3  Inst,  201.) — It  is  not  permitted  to  build  upon  one's 
own  land  so  as  it  may  be  injurious  to  another, 

24.  ^dificatum  solo,  solo  cedit :  (Co,  Litt.  4  a.) — That  which 

is  built  upon  the  land  goes  with  the  land. 

25.  ^quitas  est  perfecta  quaedam  ratio  qu«  jus  scriptum  in- 

terpretatur  et  emendat ;  nulla  scriptura  comprehensa, 
sed  sola  ratione  consistens :  (Co.  Litt.  24.) — Equity  is  a 
sort  of  perfect  reason  which  interprets  and  amends 
written  law ;  comprehended  in  no  code,  but  consistent 
with  reason  alone, 

26.  ^quitas  est  quasi  equalitas  :  (Co,  Litt.  24.) — Equity  is  as 

it  were  equality. 

27.  J^^quitas  sequitur  legem  :  (Gilb.  136.) — Equity  follows  law. 

28.  Affinitas  dicitur,  cum  duoe  cognatioiies,  inter  se  divisos,  per 

imptias  coi)ulantur,  et  altera  ad  alterius  fines  accidit : 
(Co.  Litt.  157.) — It  is  called  afiinity  when  two  families, 
divided  from  one  another,  are  united  by  marriage,  and 
one  of  them  approaches  the  confines  of  another. 


222  LEGAL     MAXIMS. 

20.  Agentes  et  consentientes,  pari  pcena  plectentur  :  (5  Co.  80.) 
— Parties  both  acting  and  consenting,  are  liable  to  the 
same  punishment. 

30.  Alienatio  rei  prsefertur  juri  accrescendi :  (Co.  Litt.  185  a.) 

— Alienation  of  property  is  favored  bj  the  law  rather 
than  accumulation  :  (Maxevi  8.) 

31.  Allegans  contraria  non  est  audiendus  :  (Jenk.  Cent.  16.) — 

Contrary  allegations  are  not  to  be  hoards  (Maxim  9.) 

32.  Allegans  suam  turpitudinem  non  est  audiendus  :  (4  Inst. 

279.) — A  person  alleging  his  own  infamy  is  not  to  be 
heard. 

33.  Alternatica  petitio  non  est  audienda :  (5  Co.  40.) — An  al- 

ternative petition  is  not  to  be  heard. 

34.  Ambiguitas  verborum  latens,  verificatione  suppletur,  nam 

quod  ex  facto  oritur  ambiguum  verificatione  facti  toUi- 
tur :  (Bac.  Max.  Reg.  23.) — Latent  ambiguity  of  words 
may  be  supplied  by  evidence ;  for  ambiguity  arising 
upon  the  deed  is  removed  by  proof  of  the  deed: 
(Maxim  10.) 

35.  Anglise  jura  in  omni  casu  libertati  dant  favorem  :  (Fortesc. 

c.  42.) — The  laws  of  England  in  every  case  of  liberty 
are  favorable. 

36.  Arbitrium  est  judicium :  (Jenk.  Cent.  137.) — An  award  is 

a  judgment. 

37.  Arbor  dum  crescit ;  lignum  cum  crescere  nescit :  (2  Bui. 

82.) — A  tree  is  so  called  whilst  growing,  but  wood  when 
it  ceases  to  grow. 

38.  Argumentum  ab  impossibili  plurimum  valet  in  lege  :  (Co. 

Litt.  92.) — An  argument  deduced  from  an  impossibility 
greatly  avails  in  law. 

39.  Argumentum  ab  authoritate  fortissimum  est  in  lege  :  (Co. 

Litt.  254.) — An  argument  from  authority  is  most  power- 
ful in  law. 


LEGAL    MAXIMS.  223 

40.  Argumentum  ab  inconvenienti  plurimum  valet  in  lege  : 

(Co.  Litt.  QQ.) — An  argument  from  inconvenience  avails 
much  in  law  :  (Maxim  11.) 

41.  Argumentum  a  majori  ad  minus  negative  non  valet ;  valet 

e  converso  :  (Jenk.  Cent.  281.) — An  argument  from  the 
greater  to  the  less  is  of  no  force  negatively,  affirmative- 
ly it  is. 

42.  Argumentum  a  simili  valet  in  lege :  (Co.  Litt.  191.) — An 

argument  from  a  like  case  avails  in  law. 

43.  Arma  in  armatos  sumere  jura  sinunt :  (2  Jus.  5Y4.) — The 

laws  permit  to  take  arms  against  armed  persons. 

44.  Assignatus  utitur  jure  auctoris  :    (Hal.  Max.   14.) — That 

which  is  assigned  takes  with  it  for  its  use  the  rights  of 
the  assignor :  (Maxim  12.) 

45.  A  verbis  legis  non  est  recedendum :  (5  Co.  118.) — From 

the  words  of  the  law  there  is  not  any  departure. 

46.  Benedicta  est  expositio  quando  res  redimitur  a  destruc- 

tione  :  (4  Co.  25.) — Blessed  is  the  exposition  by  which 
anything  is  saved  from  destruction. 

47.  Benigne  faciendse  sunt  interpretationes,  propter  simplici- 

tatem  laicorum,  ut  res  magis  valeat  quam  pereat ;  et 
verba  intentioni,  non  e  contra,  debent  inservire :  (Co. 
Litt.  36.) — Liberal  constructions  of  written  documents 
are  to  be  made,  because  of  the  simplicity  of  the  laity, 
and  with  a  view  to  carry  out  the  intention  of  the  par- 
ties and  uphold  the  document ;  and  words  ought  to 
be  made  subservient,  not  contrary,  to  the  intention  : 
(MAxm  13.) 

48.  Benignior  sententia  in  verbis  generalibus  seu  dubiis  est 

prseferenda :  (4  Co.  13.) — The  most  favorable  construc- 
tion is  to  be  placed  on  general  or  doubtful  expressions. 

49.  Boni  judicis  est  ampliare  jurisdictionem  :  (Chan.  Prac.  329.) 

— A  good  judge  will,  when  necessary,  extend  the  limits 
of  his  jurisdiction :  (Maxim  14.) 


224  LEGAL    MAXIMS. 

50.  Boni  judicis  est  judicium  sine  dilatione  mandare  execu- 

tioni :  (Co.  Litt.  289  h.) — It  is  the  duty  of  a  good  judge 
to  order  judgment  to  be  executed  without  delay. 

51.  Boni  judicis  est  lites  dirimere :  (4  Co.  15.) — It  is  the  duty 

of  a  good  judge  to  prevent  litigation. 

52.  Bonus  judex  secundum  sequum  et  bonum  judicat,  et  sequi- 

tatem  stricto  juri  prsefert :  (Co.  Litt.  24.) — A  good 
judge  decides  according  to  justice  and  right,  and  prefers 
equity  to  strict  law. 

53.  Breve  judiciale  non  cadit  pro  defectu  formse :  (Jenk.  Cent. 

43.) — A  judicial  writ  fails  not  through  defect  of  form. 

54.  Caecek  ad  homines  custodiendos,  non  ad  puniendos,  dari 

debet :  (Co.  Litt.  260.) — A  prison  should  be  assigned  to 
the  custody,  not  the  punishment  of  persons. 

55.  Casus  fortuitus  non  est  sperandus  ;  et  nemo  tenetur  divin- 

are :  (4  Co.  66.) — A  fortuitous  event  is  not  to  be  fore- 
seen ;  and  no  person  is  understood  to  divine. 

56.  Catalla  reputantur  inter  minima  in  lege :  (Jenk.  Cent.  28.) 

— Chattels  are  considered  in  law  among  the  minor 
things. 

57.  Causae  dotis,  vitse,  libertatis,  fisci,  sunt  inter  favorabilia  in 

lege :  (Jenk.  Cent.  284.) — Causes  of  dower,  life,  liberty, 
revenue,  are  among  the  favorable  things  in  law. 

58.  Causa  ecclesiae  publicis  causis  sequiparatur ;  et  summa  est 

ratio  quae  pro  religione  facit :  (Co.  Litt.  341.) — The  cause 
of  the  church  is  equal  to  public  causes  ;  and  for  the  best 
of  reasons,  it  is  the  cause  of  religion. 

59.  Caveat  emptor ;  qui  ignorare  non  debuit  quod  jus  alienum. 

emit :  (Hob.  99.) — Let  a  purchaser  beware  ;  no  one  ought 
in  ignorance  to  buy  that  which  is  the  right  of  another : 
(Maxim  15.) 

60.  Certum  est  quod  certum  reddi  potest :  (9  Co.  47.) — That  is 

certain  which  is  able  to  be  rendered  certain :  (Maxim 
16.) 


LEGAL    MAXIMS.  225 

61.  Cessante  causa,  cessat  effectus :  (Co.  Litt.  70.) — When  the 
cause  ceases,  the  effect  ceases. 

-62.  Cessante  ratione  legis,  cessat  ipsa  lex :  (Co.  Litt.  YO.) — The 
reason  of  the  law  ceasing,  the  law  itself  ceases  :  (Maxim 

n.) 

€3.  Cessante  statu  primitivo,  cessat  derivatibus  :  (8  Co.  34.) — 
The  original  estate  ceasing,  the  derivative  ceases. 

64.  Chartarum  super  fidem,  mortuis  testibus,  ad  patriam  de 

necessitudine,  recurrendum  est :  (Co.  Litt,  36.) — The 
witnesses  being  dead,  it  must  be  referred,  as  to  the  truth 
of  charters,  out  of  necessity,  to  the  country,  ^.  e.,  a  jury. 

65.  Charters  sont  appelle  "muniments"  a  "muniendo"  quia 

muniunt  et  defendunt  hsereditatem :  (4  Co.  153.) — 
Charters  are  called  "  muniments "  from  "  muniendo," 
because  they  fortify  and  defend  the  inheritance. 

^Q.  Chirographum  apud  debitorem  repertum  prsesumitur  solu- 
tum :  (Halk.  20.) — A  deed  or  bond  found  with  the 
debtor  is  presumed  to  be  paid. 

67.  Circuitus  est  evitandus  ;  et  boni  judicis  est  lites  dirimere, 

ne  lis  ex  lite  oritur:  (5  Co.  31.) — Circuity  is  to  be 
avoided  ;  and  it  is  the  duty  of  a  good  judge  to  deter- 
mine litigations,  lest  one  lawsuit  arise  out  of  another. 

68.  Clausula  generalis  non  refertur  ad  expressa :  (8  Co.  154.) — 

A  general  clause  does  not  refer  to  things  expressed. 

69.  Clausula  quae  abrogationem  excludit  ab  initio  non  valet : 

(Bac.  Max.  Keg.  19.) — A  clause  which  excludes  abroga- 
tion avails  not  from  the  beginning. 

70.  Clausulae  inconsuetse  semper  inducunt  suspicionem :  (3  Co. 

81.) — Unusual  clauses  always  excite  suspicion. 

71.  Clerici  non  ponentur  in  officiis  :  (Co.  Litt.  96.) — The  clergy 

cannot  be  compelled  to  serve  temporal  offices. 

72.  Cogitationis  po3nam  nemo  meretur :  (2  Inst.  Jur.  Civ.  658.) 

— No  man  deserves  punishment  for  a  thought. 
15 


226  LEGAL    MAXIMS. 

73.  Cohaeredes  una  persona  censentur,  propter  unitatem  juris 

quod  liabent :  (Co.  Litt.  163.) — Co-heirs  are  deemed  as 
one  person  on  account  of  the  unity  of  law  which  they 

possess. 

74.  Commerciura  jure  gentium  commune  esse  debet,  et  non  in 

monopolium  et  privatum  paucorum  qusestum  conver- 
tendum  :  (3  Inst.  56.) — Commerce,  by  the  law  of  na- 
tions, ought  to  be  common,  and  not  converted  to  mo- 
nopoly and  the  private  gain  of  a  few. 

75.  Communis  error  facit  jus :  (4  Inst.  240.) — Common  error 

makes  right :  (Maxim  18.) 

76.  Compromissarii  sunt  judices :  (Jenk.  Cent.  128.) — Arbitra- 

tors are  judges. 

77.  Conditio  beneficialis  quas  statum    construit,  benigne,  se- 

cundum verborum  intentionem  est  interpretanda ;  odi- 
osa,  autem,  qu83  statum  destruit,  stricte,  secundum 
verborum  proprietatem,  accipiunda :  (8  Co.  90.) — A 
beneficial  condition,  which  creates  an  estate,  ought  to 
be  construed  favorably,  according  to  the  intention  of 
the  words ;  but  a  condition  which  destroys  an  estate  ia 
odious,  and  ought  to  be  construed  according  to  the  let- 
ter of  the  words. 

78.  Conditio  prsecedens  adimpleri  debet  priusquam  sequatur 

effectus :  (Co.  Litt.  201  a.) — A  condition  precedent 
must  be  fulfilled  before  the  effect  can  follow. 

79.  Confessio,  facta  in   judicio,  omni   probatione   major   est : 

(Jenk.  Cent.  102.) — A  confession  made  in  judicial  pro- 
ceedings is  of  greater  force  than  all  proof. 

80.  Confessus  in  judicio  pro  judicato  habetur,  et  quodammodo 

sua  sententia  damnatur :  (11  Co.  30.) — A  person  con- 
fessing a  judgment  is  deemed  as  adjudged,  and,  in  a 
manner,  is  condemned  by  his  own  sentence. 

81.  Confirmare  est  id  quod  firmum  facere  prius  infirmum  fuit : 

(Co.  Litt.  295  h.) — To  confirm  is  to  make  firm  that 
which  was  before  infirm. 


LEGAL    MAXIMS.  227 

82.  Confirmare  nemo  potest  priusquam  jus  ei  accident :    (10 

Co,  48.) — No  person  can  confirm  a  right  before  the 
riffht  shall  come  to  him. 

83.  Confirmatio  est  nulla  ubi  donum  prsecedens  est  invalidum : 

(Co.  Litt.  295  h.) — There  is  no  confirmation  where  the 
preceding  gift  is  invalid. 

84.  Consensus  non   concubitus  facit   matrimonium  ;    et  con- 

sentire  non  possunt  ante  annos  nubiles  :  (6  Co.  22.) — 
Consent,  and  not  concubinage,  constitutes  marriage ; 
and  they  are  not  able  to  consent  before  marriageable 
years  :  (Maxim  19.) 

85.  Consensus  tollit  errorem  :    (Co.  Litt.  126.) — Consent  takes 

away  error :  (Maxim  20.) 

86.  Consentientes  et  agentes  pari  poena  plectentur  :  (5  Co.  80.) 

— Those  consenting  and  those  perpetrating  are  embraced 
in  the  same  punishment. 

87.  Constructio  legis  non  facit  injuriam  :    (Co.  Litt.  183  a.) — 

The  construction  of  law  does  not  work  any  injury. 

88.  Consuetude  debet  esse  certa ;  nam  incerta  pro  nulla  haben- 

tur :  (Dav.  33.) — A  custom  should  be  certain,  for  un- 
certain things  are  held  as  nothing. 

89.  Consuetudo  est  optimus  interpres  legum  :  (2  Inst.  18.) — 

Custom  is  the  best  expounder  of  the  laws. 

90.  Consuetudo   et   communis    assuetudo   vincit    legem   non 

scriptam,  si  sit  specialis  ;  et  interpretatur  legem  scrip- 
tam,  si  lex  sit  generalis :  (Jenk.  Cent.  273.) — Custom 
and  common  usage  overcome  the  unwritten  law,  if  it 
be  special ;  and  interpret  the  written  law  if  it  be  gen- 
eral. 

91.  Consuetudo  ex  certa  causa  rationabili  usitata  privat  com- 

munem  legem  :  (Litt.  §  169.) — A  custom  grounded  on  a 
certain  reasonable  cause,  supersedes  the  common  law. 

92.  Consuetudo,  licet  sit  inagntB  auctoritatis  nunquam  tamen 

praejudicat  manifestae  veritati :   (4  Co.  18.) — A  custom, 


228  LEGAL     MAXIMS. 

though  it  be  of  great  authority,  should  never,  however, 
be  prejudicial  to  manifest  truth. 

93.  Consuetudo  manerii  et  loci  observanda  est :   (4  Co.  21.) — 

The  custom  of  a  manor  and  place  is  to  be  observed. 

94.  Consuetudo  regni  Anglise  est  lex  Angliae  :  (Jenk.  Cent. 

119.) — The  custom  of  England  is  the  law  of  England. 

95.  Consuetudo  semel  reprobata  non  potest  amplius  induci : 

(Dav.  33.) — Custom  once  disallowed  cannot  be  again  al- 
leged. 

96.  Contemporanea  expositio  est  optima  et  fortissima  in  lege  : 

(2  Inst.  11.) — A  contemporaneous  exposition  is  the  best 
and  strongest  in  law  :  (MAxar  21.) 

97.  Contractus  est  quasi  actus  contra  actum  :  (2  Co.  15.) — A 

contract  is,  act  against  act. 

98.  Contrectatio  rei  alienee,  animo  furandi,  est  furtum  :  (Jenk. 

Cent.  132.) — The  touching  of  property  not  one's  own, 
with  an  intention  to  steal,  is  theft. 

99.  Conventio  privatorum  non  potest  publico  juri  derogare : 

(Wing.  746.) — A  convention  of  private  persons  cannot 
affect  public  right. 

100.  Copulatio  verborum  indicat  acceptationem  in  eodem  sen- 

su :  (Bac.  iv.  26.) — The  coupling  of  words  shows  that 
they  are  to  be  taken  in  the  same  sense. 

101.  Corpus  humanum  non  recipit  sestimationem  :   (Hob.  59.) 

— A  human  body  is  not  susceptible  of  appraisement. 

102.^Crescente  malitia  crescere  debet  et  poena  :  (2  Inst.  479.) — 
Yice  increasing,  punishment  ought  also  to  increase. 

103.^Crimen  laesge  majestatis  omnia  alia  crimina  excedit  quoad 
poenam :  (3  Inst.  210.) — The  crime  of  treason  exceeds 
all  other  crimes  as  to  its  punishment. 

104.  Cui  licet  quod  majus  non  debet  quod  minus  est  non  licere : 
(4  Co.  23.) — He  who  has  authority  to  do  the  more  im- 
portant act  shall  not  be  debarred  from  doing  that  of  less 
importance. 


LEGAL    MAXIMS.  229 

105.  Cuicunque  aliquis  quid  concedit  concedere  videtur  et  id 

sine  quo  res  ipsa  esse  non  potuit :  (11  Co.  52.) — Tlie 
grantor  of  anything  to  another  grants  that  also  without 
which  the  thing  granted  would  be  useless  :  (Maxim  22.) 

106.  Cuilibet  in  sua  arte  perito  est  credendum  :  (Co.  Litt.  125.) 

— Whosoever  is  skilled  in  his  profession  is  to  be  be- 
hoved :  (Maxim  23.)  ^ 

107.  Cujus  est  dare,  ejus  est  disponere :   (Wing.  Max.  53.) — 

Whose  is  to  give,  his  is  to  dispose. 

108.  Cujus  est  solum,  ejus  est  usque  ad  ccelum ;  et  ad  inferos  : 

(Co.  Litt.  4.) — Whose  is  the  land  his  is  also  that  which 
is  above  and  below  it :  (Maxim  24.) 

109.  Cum  duo  inter  se  pugnantia  reperiuntur  in  testamento, 

ultimum  ratum  est :  (Co.  Litt.  112.) — Where  two  clauses 
in  a  will  are  repugnant  one  to  the  other,  the  last  in  order 
shall  prevail :  (Maxim  25.) 

110.  Curia  parliamenti  suis  propriis  .legibus  substitit :  (4  Inst. 

50.) — The  Court  of  Parliament  is  governed  by  its  own 
peculiar  laws. 

111.  Cursus  curiae  est  lex  curiae :    (3  Buls.  53.) — The  practice 

of  the  court  is  the  law  of  the  court :  (Maxim  26.) 

112.  Custos  statum  hseredis  in  custodia  existentis  meliorem, 

non  deteriorem,  facere  potest :  (7  Co.  7.) — A  guardian 
can  make  the  estate  of  an  existing  heir  under  his  guard- 
ianship better,  but  not  worse. 

113.  Debile  fundamentum  fallit  opus  :    (Noy  Max.  20.) — A 

weak  foundation  destroys  the  superstructure. 

114.  Debitum  et  contractus  sunt  nuUius  loci :  (7  Co.  3.) — Debt 

and  contract  are  of  no  place. 

115.  Debitor  non  prsesumiter  donare  :  (Jur.  Civ.) — A  debtor  is 

not  presumed  to  give. 

116.  De  fide  et  officio  judicis  non  recipitur  qiuestio ;    sed  de 

scientia,  sive  error  sit  juris  aut  facti :    (Bac.  Max.  Reg. 


230  LEGAL    MA.XIM3. 

17.) — Of  the  good  faith  and  intention  of  a  judge,  a 
question  cannot  be  entertained  ;  but  it  is  otherwise  as 
to  his  knowledge  or  error,  be  it  in  law  or  in  fact : 
(Maxim  27.) 

117.  Delegata  potestas  non  potest  delegari :    (2  Inst.  597.) — A 

delegated  power  cannot  be  delegated. 

118.  Delegatus  non  potest  delegare  :    (Ibid.) — A  delegate  can- 

not delegate. 

119.  Deliberandum  est  diu  quod  statuendum  est  semel :    (12 

Co.  74.) — That  which  is  to  be  resolved  once  for  all, 
should  be  long  deliberated  upon. 

120.  De  minimis  non  curat  lex  :    (Cro.  Eliz.  353.) — Of  trifles 

the  law  does  not  concern  itself  :  (Maxim  28.) 

121.  De  morte  hominis  nulla  est  cunctatio  longa :    (Co.  Litt. 

134.) — Concerning  the  death  of  a  man  no  delay  is  long. 

122.  De  non  apparentibus,  et  non  existentibus,  eadem  est  ratio  : 

(5  Co.  6.) — Of  things  which  do  not  appear  and  things 
which  do  not  exist,  the  rule  in  legal  proceedings  is  the 
same :  (Maxim  29.) 

123.  Derivativa  potestas    non   potest   esse   major  primitiva : 

(Noj  Wing.  66.) — The  power  derived  cannot  be  great- 
er than  that  from  which  it  is  derived. 

124.  Designatio  justiciarorum  est  a  rege ;   jurisdictio  vero  or- 

dinaria  a  lege  :  (4  Inst.  74.) — The  appointment  of  jus- 
tices is  by  the  king  ;  but  ordinary  jurisdiction  is  by  the 
law. 

125.  Designatio  unius  est  exclusio  alterius,  et  expressum  facit 

cessare  tacitum  :  (Co.  Litt.  210  a.) — The  appointment  of 
one  is  the  exclusion  of  another,  and  that  which  is  ex- 
pressed makes  that  understood  to  cease. 

126.  De  similibus  idem  est  judicium  :  (7  Co.  18.) — Concerning 

similars  the  judgment  is  the  same. 

127.  Deus  solus  hseredem  facere  potest  non  homo :  (Co.  Litt. 

7.) — God  alone,  and  not  man,  can  make  an  heir. 


LEGAL     MAXIMS.  231 

128.  Dies  Dominicus  non  est  juridicus  :  (Co.  Litt.  135.) — The 

Lord's  day  (Sunday)  is  not  juridical,  or  a  day  for  legal 
proceedings  :  (Maxim  30.) 

129.  Discretio  est  discernere  per  legem  quid  sit  justum:  (10 

Co.  140.) — Discretion  is  to  know  through  law  what  is 
just. 

130.  Distinguenda  sunt  tempora ;  distingue  tempora,  et  con- 

cordabis  legis  :  (1  Co.  24.) — Times  are  to  be  distin- 
guished ;  distinguish  times,  and  you  will  make  the  laws 
agree. 

131.  Dolus  et  fraus  una  in  parte  sanaridebent :  (Noy  Max.  45.) 

— Deceit  and  fraud  should  always  be  remedied. 

132.  Domus  sua  cuique  est  tutissimum  refugium :  (5  Co.  91.) 

— To  every  one  his  house  is  his  surest  refuge  ;  or,  every 
man's  house  is  his  castle :  (Maxim  31.) 

133.  Dona  clandestina  sunt   semper  suspiciosa:  (3  Co.  81). — 

Clandestine  gifts  are  always  suspicious. 

134.  Donatio  peril citur  possessione  accipientis  :  (Jenk.  Cent. 

109.) — A  gift  is  perfected  by  the  possession  thereof  by 
the  donee. 

135.  Donationum  alia  perf  ecta,  alia  incejDta  et  non  perf ecta  ;  ut 

si  donatio  lecta  fuit  et  concessa,  ac  traditio  nondum 
fuerit  subsecuta :  (Co.  Litt.  56.) — Some  gifts  are  perfect, 
others  incipient  or  not  perfect ;  as  if  a  gift  were  read 
and  agreed  to,  but  delivery  had  not  then  followed. 

136.  Donator  nunquam  desinit  possidere  antequam  donatarius 

incipiat  possidere :  (Dyer,  281.) — He  who  gives  never 
ceases  to  possess  before  that  the  receiver  begins  to  pos- 
sess. 

137.  Dormiunt  aliquando  leges,  nunquam  moriuntur :  (2  Inst. 

161.) — The  laws  sometimes  sleep,  never  die. 

138.  Doti  lex  favet ;  prsemium  pudoris  est,  ideo  parcatur  :  (Co. 

Litt.  31.) — The  law  favors  dower;  it  is  the  reward  of 
chastity,  therefore  is  to  be  preserved. 


232  LEGAL    MAXIMS. 

139.  Droit  ne  done  pluis  que  soit  demande :  (2  Inst.  286.) — 

The  law  gives  no  more  than  is  demanded. 

140.  Duo  non  possunt  in  solido  nnam  rem  possidere :  (Co.  Litt. 

368.) — Two  persons  cannot  possess  one  thing  in  entirety. 

141.  Duo  sunt  instrumenta  ad  omnes  res  aut  confirmandas  aut 

impugnandas — ratio  et  auetoritas  :  (8  Co.  16.) — There 
are  two  instruments  either  to  confirm  or  impugn  all 
things — reason  and  authority. 

142.  EccLESiA  non  moritur  :  (2  Inst.  3.) — The  church  does  not 

die. 

143.  En  eschange  il  covient  que  les  estates  soient  egales :  (Co. 

Litt.  50.) — In  an  exchange  it  is  necessary  that  the  es- 
tates be  equal. 

144.  Eodem  modo  quo  quid   constituitur,  eodem  modo  des- 

tniitur :  (6  Co.  53.) — In  the  same  way  in  which  any- 
thing is  constituted,  it  may  be  destroyed. 

145.  Episcopus  alterius  mandato  quam  regis  non  tenetur  ob- 

temperare :  (Co.  Litt.  134.) — A  bishop  need  not  obey 
any  mandate  save  the  king's. 

146.  Error  fucatus  nuda  veritate  in  multis  est  probabilior ;  et 

sgepenumero  rationibus  vincit  veritatem  error :  (2  Co. 
73.) — Painted  error  appears  in  many  things  more  prob- 
able than  naked  truth  ;  and  very  frequently  conquers 
truth  by  reasoning. 

147.  Error  qui  non  resistitur,  approbatur :  (Doc.  and  Stud.  c. 

70.) — An  error  which  is  not  resisted,  is  approved. 

148.  Errores  ad  sua  principia  referre,  est  refellere  :  (3  Inst.  15.) 

— To  refer  errors  to  their  principles,  is  to  refute  them. 

149.  Eventus  est  qui  ex  causa  sequitur ;  et  dicitur  eventus  quia 

ex  causis  evenit :  (9  Co.  81.) — An  event  is  that  which 
follows  from  the  cause  ;  and  is  called  an  event  because 
it  arises  from  causes. 

150.  Eventus  varios  res  nova  semper  liabet :  (Co.  Litt.  379, 

A  new  matter  always  induces  various  events. 


LEGAL    MAXIMS.  233 

151.  Ex  antecedentibus  et  consequentibus  fit  optima  interpre- 

tatio  :  (2  Inst.  317.) — From  that  which  goes  before,  and 
from  that  which  follows,  is  derived  the  best  interpreta- 
tion :  (Maxim  32.) 

152.  Exceptio    ejus   rei   cujus    petitur    dissolutio   nulla   est : 

(Jenk.  Cent.  37.) — There  is  no  exception  of  that  thing 
of  which  the  dissolution  is  sought. 

153.  Exceptio  nulla  est  versus  actionem  quae  exceptionem  peri- 

mit :  (Jenk.  Cent.  106.) — There  is  no  exception  against 
an  action  which  entirely  destroys  an  exception. 

154.  Exceptio  probat  regulam  de  rebus  non  exceptis :  (11  Co. 

41.) — An  exception  proves  the  rule  concerning  things 
not  excepted. 

155.  Exceptio  semper  ultima  ponenda  est :  (9   Co.  53.) — An 

exception  is  always  to  be  put  last. 

156.  Excessivum  in  jure  reprobatur.     Excessus  in  re  qualibet 

jure  reprobatur  communi :  (Co.  44.) — Excess  in  law  is 
reprehended.  Excess  in  anything  is  reprehended  at 
common  law. 

157.  Excusat  aut  extenuat  delictum  in  capitalibus  quod  non 

operatur  idem  in  civilibus :  (Bac.  Max.  Reg.  15.) — A 
wrong,  in  capital  cases,  is  excused  or  palliated,  which 
would  not  be  so  treated  in  civil  cases. 

158.  Ex  diuturnitate  temporis  omnia  praesumuntur  esse  solen- 

nitur  acta :  (Jenk.  Cent.  185.) — From  lapse  of  time,  all 
things  are  presumed  to  have  been  done  properly. 

159.  Ex  dolo  malo  non  oritur  actio  :  (Cowp.  341.) — From  fraud 

a  right  of  action  does  not  arise :  (Maxim  33.) 

160.  Executio  est  finis  et  fructus  legis :  (Co.  Litt.  280  h.) — Ex- 

ecution is  the  end  and  fruit  of  the  law. 

161.  Executio  juris  non  habet  injuriam :  (2  Inst.  482.) — The 

execution  of  the  process  of  the  law  does  no  injury : 
(Maxim  34.) 


234  LEGAL    MAXIMS. 

162.  Executio  est  executio  juris  secundnra  jndicium :  (3  Inst 

212.) — Execution  is  the  execution  of  tlie  law  according 
to  the  judgment. 

163.  Exempla  illustrant,  non   restringunt,  legem :  (Co.  Litt. 

240.) — Examples  illustrate,  not  restrain,  the  law. 

164.  Ex  facto  jus  oritur :  (2  Inst.  49.) — The  law  arises  from 

the  deed. 

165.  Ex  nudo  pacto  non  oritur  actio :  (Plow.  Com.  305.) — 

From  a  nude  contract,  i.  e.,  a  contract  without  consid- 
eration, an  action  does  not  arise  :  (Maxim  35.) 

166.  Ex  prsecedentibus  et  consequentibus  optima  fit  interpre- 

tatio :  (1  Rol.  Rep.  375.) — The  best  interpretation  is 
made  from  that  which  precedes  and  follows. 

167.  Expressa  non  prosunt  quae  non  expressa  proderunt :  (4 

Co.  73.) — Things  expressed  do  no  good,  which,  not  ex- 
pressed, do  no  harm. 

168.  Expressio  eorum  quse  tacite  insunt,  nihil  operatur :  (Co. 

Litt.  210.) — The  expressing  of  those  things  which  are 
implied,  operates  nothing. 

169.  Expressio  unius  personse  vel  rei  est   exclusio   alterins: 

(Co.  Litt.  210.) — The  express  mention  of  one  person  or 
thing  is  the  exclusion  of  another :  (Maxim  36.) 

170.  Expressum  facit  cessare  tacitum  :  (Co.  Litt.  183.) — What 

is  expressed  makes  what  is  silent  to  cease. 

171.  Extortio  est  crimen  quando  quis  colore  officii  extorquet 

quod  non  est  debitum,  vel  supra  debitum,  vel  ante  tem- 
pus  quod  est  debitum :  (10  Co.  102.) — Extortion  is  a 
crime,  when,  by  color  of  office,  any  person  extorts  that 
which  is  not  due,  or  above  due,  or  before  the  time  when 
it  is  due. 

172.  Extra  legem   positus    est   civiliter  mortuus :  (Co.   Litt. 

130  a.) — An  outlaw  is  civilly  dead. 

173.  Extraneus  est  subditus  qui  extra  terram,  i.  e.,  potestatem 

regis,  natus  est :  (7  Co.  16.) — A  foreigner  is  one  who  is 


LEGAL     MAXIMS.  235 

born  out  of  the  territory,  that  is,  the  government,  of  the 
king. 

1Y4.  Ex  turpi  causa  non  oritur  actio  :  (Cowp.  343.) — An  action 
does  not  arise  from  a  base  cause. 

175.  Facta  tenet  multa  quae  fieri  prohibentur :  (12  Co.  125.) — 

Deeds  contain  many  tilings  which  are  prohibited  to  be 
done. 

176.  Factum  a  judice  quod  ad  ejus  oflScium  non  spectat,  non 

ratum  est :  (10  Co.  76.) — An  action  of  a  judge,  which 
relates  not  to  his  office,  is  of  no  force. 

177.  Facultas  probationum  non  est  angustanda :  (4  Inst.  279.) 

— The  faculty  of  proofs  is  not  to  be  narrowed. 

178.  Falsa  demonstratio  non  nocet :    (6  T.  E.  676.) — A  false 

description  does  not  vitiate  a  document :  (Maxevi  37.) 

179.  Falsa  orthographia,  sive  falsa  grammatica  non  vitiat  con- 

cessionem :  (9  Co.  48.) — False  spelling  or  false  grammar 
does  not  vitiate  a  grant. 

180.  Fatetur  facinus   qui   judicium  fugit :    (3  Inst.  14.) — He 

who  flees  judgment  confesses  his  guilt. 

181.  Favorabiliores  sunt  executiones  aliis  processibus  quibus- 

cunque :  (Co.  Litt.  289.) — Executions  are  more  preferred 
than  all  other  processes  whatever. 

182.  Felonia  implicatur  in  qualibet  proditione  :  (3  Inst.  15.) — 

Felony  is  implied  in  every  treason. 

183.  Felonia,  ex  vi  termini,  significat  quodlibet  capitale  crimen 

felleo  animo  perpetratum :  (Co  Litt.  391.) — Felony,  by 
force  of  the  term,  signifies  some  capital  crime  perpe- 
trated with  a  malignant  mind. 

184.  Feodum  est  quod  quis  tenet  ex  quacunque  causa,  sive  sit 

tenementum  sive  redditus  ;  (Co.  Litt.  1.) — A  fee  is  that 
which  any  one  holds,  from  whatever  cause,  whether  it 
be  a  tenement  or  a  rent. 


236  LEGAL    MAXIMS. 

185.  Feodum  simplex  quia  feodum  idem  est  quod  hsereditas, 

et  simplex  idem  est  quod  legitimum  vel  purum,  et  sic 
feodum  simplex  idem  est  quod  lisereditas  legitima  vel 
hgereditas  pura :  (Litt.  §  1.) — A  fee  simple,  so  called  be- 
cause fee  is  the  same  as  inheritance,  and  simple  is  the 
same  as  legitimate  or  pure  ;  and  thus  fee  simple  is  the 
same  as  a  legitimate  or  pure  inheritance. 

186.  Feodum  talliatum,  i.  e.,  lisereditas  in  quandam  certitud- 

inem  limitata :  (Litt.  §  13.) — Fee  tail,  that  is,  an  inheri- 
tance within  a  certain  limit. 

187.  Festinatio  justitise  est  noverca  infortunii :  (Hob.  97.) — 

Hasty  justice  is  the  stepmother  of  misfortune. 

188.  Fiat  justitia,  ruat  coelum :    (Dyer,   385.) — Let  right  be 

done,  though  the  heavens  fall. 

189.  Fictio  cedit  veritati :  fictio  juris  non  est  ubi  Veritas:  (11 

Co.  51.) — Fiction  yields  to  truth  ;  where  there  is  truth, 
fiction  of  law  does  not  exist. 

190.  Filiatio  non  potest  probari :  (Co.  Litt.  126.) — Afiiliation. 

cannot  be  proved. 

191.  Finis  rei  attendendus  est:  (3  List.   51.) — The  end  of  a 

thing  is  to  be  attended  to. 

192.  Finis  finem  litibus  imponit :  (3  Co.  78.) — The  end  puts  an 

end  to  litigations. 

193.  Finis  unius  diei  est  principium  alterius :  (2  Buls.  305.) — 

The  end  of  one  day  is  the  beginning  of  another. 

194.  Firmior  et  potentior  est  operatio  legis  quam  dispositio 

hominis  :  (Co.  Litt.  102.) — The  operation  of  the  law  is 
firmer  and  more  powerful  than  the  will  of  man. 

195.  Flumina  et  portus  publica  sunt,  ideoque  jus  piscandi  om- 

nibus commune  est. — -jSTavigable  rivers  and  ports  are 
public ;  therefore,  the  right  of  fishing  there,  is  common, 
to  all. 

196.  Felix  qui  potuit  rerum  cognoscere  causas:  (Co.  Litt.  231.) 

— Happy  is  he  who  can  apprehend  the  causes  of  things. 


LEGAL    MAXIMS.  '237 

197.  Foeminae   non  sunt   capaces  de  publicis   officiis:    (Jenk. 

Cent.  237.) — "Women  are  not  qualified  for  public  offices. 

198.  Forma  legalis   forma   essentialis  :    (10  Co.   100.) — Legal 

form  is  an  essential  form. 

199.  Forma  non  observata  infertur  adnuUatio  actus :  (12  Co. 

7.) — Form  not  being  observed,  a  nullity  of  the  act  is  in- 
ferred. 

200.  Fortior  est  custodis  legis  quam  hominis :  (2  Kol.  Rej). 

325.) — The  custody  of  the  law  is  stronger  than  that  of 
man. 

201.  Fortior  et  sequior  est  dispositio  legis  quam  hominis  :  (Co. 

Litt.  234.) — The  will  of  the  law  is  stronger  and  more 
equal  than  that  of  man. 

202.  Fraus  est  celare  fraudem :  (1  Yern.  270.) — It  is  fraud  to 

conceal  fraud. 

203.  Fraus  est  odiosa  et  non  prsesumenda :  (Cro.  Car.  550.) — 

Fraud  is  hateful  and  not  to  be  presumed. 

204.  Fraus  et  jus  nunquam  cohabitant :  ("Wing.  680.) — Fraud 

and  justice  never  dwell  together. 

205.  Frustra  probatur   quod   probatum  non  relevat :    (Halk. 

Max.  50.) — It  is  useless  to  prove  that  which,  being 
proved,  would  not  avail. 

206.  Furiosus  stipulare  non  potest,  nee  aliquid  negotium  agere, 

qui  non  intelligit  quid  agit :  (4  Co.  126.) — A  madman, 
who  knows  not  what  he  does,  cannot  make  a  bargain, 
nor  transact  any  business. 

207.  Furtum  est  contrectatio  rei  alienjE  fraudulenta,  cum  animo 

furandi,  invito  illo  domino  cujus  res  ilia  fuerat :  (3  Inst. 
107.) — A  theft  is  the  fraudulent  handling  of  another's 
property  with  an  intention  of  stealing,  the  proprietor, 
whose  property  it  was,  not  willing  it. 

208.  Furtum  non  est  ubi  initium  habet  detcntionis  per  domi- 

num  rei :  (3  Inst.  107.) — It  is  not  theft  where  the  com- 


238  LEGAL     MAXIMS. 

mencement  of  the  detention  '"arises  througli  the  will  of 
the  owner  of  the  thing  detained. 

209.  Generale  dictum  generaliter  est  interpretandum :  gene- 

ralia  verba  sunt  generaliter  intelligenda :  (3  Inst.  76.) — 
A  general  saying  is  to-  be  interpreted  generally  ;  gene- 
ral words  are  to  be  understood  generally. 

210.  Generale  nihil  eerti  implicat :  (2  Co.  33.) — A  general  ex- 

pression implies  nothing  certain. 

211.  Generale  tantum  valet  in  generalibus  quantum  singulare 

in  singulis  :  (11  Co.  59.) — What  is  general  prevails  as 
much  amongst  things  general  as  what  is  particular 
amongst  things  particular. 

212.  Generalis  clausula  non  porrigitur  ad  ea  quae  antea  speci- 

aliter  sunt  comprehensa :  (8  Co.  154.) — A  general  clause 
does  not  extend  to  those  things  which  are  before  spe- 
cially provided  for. 

213.  H^REDiTAs,  alia  corporalis,  alia  incorporalis :    corporalis 

est,  quae  tangi  potest  et  videri ;  incorporalis  quae  tangi 
non  potest  nee  videri :  (Co.  Litt.  9.) — Inheritance,  some 
corporeal,  others  incorporeal :  corporeal  is  that  which 
can  be  touched  and  seen ;  incorporeal,  that  which  can 
neither  be  touched  nor  seen. 

214.  Hsereditas  est  successio  universum  jus  quod  defunctus 

habueret :  (Co.  Litt.  237.) — Inheritance  is  the  succession 
to  every  right  which  was  possessed  by  the  late  pos- 
sessor. 

215.  Hsereditus,  n'est  pas  tant  solement  entendue  lou  home  ad 

terres  ou  tenements  per  discent  d'enheritage,  mes  auxi 
chescun  fee  simple  ou  tail  que  home  ad  per  son  jDur- 
chase  puit  estre  dit  enheritance,  pur  ceo  que  ses  heirs 
luy  purront  enheriter:  (Co.  Litt.  26.) — Inheritance- is 
not  to  be  understood  as  comprehending  only  all  the 
lands  and  tenements  of  inheritance  which  a  man  has 
by  descent ;  but  also  every  fee  simple  or  fee  tail  which 
he  has  by  purchase  is  also  called  inheritance,  because 
his  heirs  can  inherit  it  from  him. 


LEGAL     MAXIMS.  239 

216.  Haeredum  appellatione  veniunt  haeredes  hceredum  in  in- 

finitum :  (Co.  Litt.  9.) — By  the  title  of  heirs  come  the 
heirs  of  heirs  in  infinitum. 

217.  Hseres  est  aut  jure  proprietatis,  aut  jure  representionis : 

(3  Co.  40.) — An  heir  is  by  right  of  property,  or  by  right 
of  representation. 

218.  Haeres  est  eadem  persona  cum  antecessore,  pars  anteces- 

soris  :  (Co.  Litt.  22.) — The  heir  is  the  same  person  with 
his  ancestor — a  part  of  his  ancestor. 

219.  Haeres  est  nomen  collectivum  :  (1  Yent.  215.) — Heir  is  a 

collective  name. 

220.  H^res  est  nomen  juris,  filius  est  nomen  naturae  :  (Bacon 

Max.  Reg.  11.) — Heir  is  a  name  of  law,  son  is  a  name  of 
nature. 

221.  Hasres  legitimus  est  quem  nuptiae  demonstrant :  (Co.  Litt. 

7.) — The  lawful  heir  is  he  whom  wedlock  shows  so  to 
to  be  :  (Maxim  38.) 

222.  Hseres  minor  uno  et  viginti  annis  non  respondebit,  nisi  in 

casu  dotis :  (Moor,  348.) — An  heir  minor,  under  twenty- 
one  years  of  age,  is  not  answerable,  except  in  case  of 
dower. 

223.  Home  ne  serra  puny  pur  suer  des  briefes  en  court  le  roy, 

soit  il  a  droit  ou  a  tort :  (2  Inst.  228.) — A  man  shall  not 
be  punished  for  suing  out  writs  in  the  king's  court, 
whether  he  has  a  right  or  a  wrong. 

224.  Homicidium  vel  hominis  caedium,  est  hominis  occisio  ab 

homine  facta :  (3  Inst.  54.) — Homicide  or  slaughter  of  a 
man,  is  the  killing  of  a  man  by  a  man. 

225.  Homo  potest  esse  habilis  et  inhabilis  diversis  temporibus : 

(5  Co.  98.) — A  man  may  be  capable  and  incapable  at 
divers  times. 

226.  Hostes  sunt  qui  nobis  vol  quibus  nos  bellum  decernimus  ; 

caeteri  proditores  vel  praedones  sunt :  (7  Co.  24.) — Ene- 
mies are  those  with  whom  we  are  at  war ;  all  others  are 
thieves  or  pirates. 


240  LEGAL    MAXIMS. 

227.  Ibi  semper  debet  fieri  triatio,  ubi  juratores  meliorem  poa- 

sunt  habere  notitiam  :  (7  Co.  1.) — A  trial  should  alwaja 
be  had  where  the  jury  can  get  the  best  information. 

228.  Id  certum  est  quod  certum  reddi  potest ;  sed  id  magis 

certum  est  quod  de  seraet  ipso  est  certum  :  (9  Co.  47.) 
— That  is  certain  which  can  be  made  certain,  but  that  is 
most  certain  which  is  certain  on  the  face  of  it. 

229.  Idem  agens  et  patiens  esse  non  potest :  (Jenk.  Cent.  40.) 

— The  same  person  cannot  be  both  the  agent  and  the 
patient. 

230.  Idem  est  facere  et  non  prohibere  cum  possis ;  et  qui  non 

prohibet  cum  prohibere  possit  in  culpa  est :  (3  Inst.  158.) 
— To  commit  and  not  prohibit,  when  in  your  power,  is 
the  same  thing ;  and  he  who  does  not,  when  he  can  pro- 
hibit, is  in  fault. 

231.  Idem  est  nihil  dicere  et  insufficienter  dicere  :  (2  Inst.  178.) 

— It  is  the  same  thing  to  say  nothing  and  not  to  say 
sufficient. 

232.  Idem  est  non  esse  et  non  apparere :  (Jenk.  Cent.  207.) — 

It  is  the  same  not  to  be  as  not  to  appear. 

233.  Idem  semper  antecedenti  proximo   refertur :  (Co.  Litt. 

20.) — The  same  is  always  referred  to  its  next  antece- 
dent. 

234.  Id  perfectum  est  quod  ex  omnibus  suis  partibus  constat ; 

et  nihil  perfectum  est  dum  aliquid  restat  agendum  :  (9 
Co.  9.) — That  is  perfect  which  is  complete  in  all  its 
parts ;  and  nothing  is  perfect  whilst  anything  remains 
to  be  done. 

235.  Id  quod  est  magis  remotum,  non  trahit  ad  se  quod  est  ma- 

gis  junctum,  sed  e  contrario  in  omni  casu :  (Co.  Litt. 
164.) — That  which  is  more  remote  does  not  draw  to, it- 
self that  which  is  nearer,  but  on  the  contrary  in  every 
case. 

236.  Ignorantia  eorum  quse  quis  scire  tenetur  non  excusat : 

(Hale  PI.  Cr.  42.) — Ignorance  of  those  things  which 
every  one  is  bound  to  know,  excuses  not. 


LEGAL     MAXIMS.  2il 

237.  Ignorantia  facti  excusat ;  ignorantia  juris  non  excusat  :  (1 

Co.  17Y.) — Ignorance  of  the  fact  excuses  ;  ignorance  of 
the  law  does  not  excuse :  (Maxim  39.) 

238.  Ignorantia  judicis  est  calamitas  innocentis  :  (2  Inst.  591.) 

— The  ignorance  of  a  ju(^e  is  the  misfortune  of  the  in- 
nocent. 

239.  Illud  quod  alias  licitum  non  est,  necessitas  facit  licitum  ; 

et  necessitas  inducit  privilegium  quod  jure  privatur: 
(10  Co.  61.) — That  which  is  otherwise  not  permitted, 
necessity  permits ;  and  necessity  makes  a  privilege 
which  supersedes  law. 

240.  Impotentia   excusat   legem  :  (Co.  Litt.   29.) — Impotency 

excuses  law  :  (Maxim  40.) 

241.  Improbi  rumores  dissipati  sunt  rebellionis  prodromi :  (2 

Inst.  226.) — "Wicked  rumors  spread  abroad  are  the  fore- 
runners of  rebellion. 

242.  Impunitas  semper  ad  deteriora  invitat :  (5  Co.  69.) — Im- 

punity always  invites  to  greater  crimes. 

243.  In  sequali  jure  melior  est  conditio  possidentis  :  (Plow. 

296.) — In  equal  rights  the  condition  of  the  possessor  is 
the  better  :  or,  where  the  rights  of  the  parties  are  equal, 
the  claim  of  the  actual  possessor  shall  prevail :  (Maxim 
41.) 

244.  In   alta  proditione   nullus   potest    esse    accessorius   sed 

principalis  solummodo  :  (3  Inst.  138.) — In  high  treason 
there  is  no  accessory,  but  principal  alone. 

245.  In  Anglia  non  est  interregnum :  (Jenk.  Cent.  205.) — In 

England  there  is  no  interregnum. 

246.  In  atrocioribus  delictis  punitur  affectus  licet  non  sequa- 

tur  effectus :  (2  Eol.  Eep.  89.) — In  more  atrocious 
crimes  the  intent  is  punished,  though  an  effect  does  not 
follow. 

247.  In  casu  extremae  necessitatis  omnia  sunt  communia  :  (II. 

P.  C.  54.) — In  cases  of  extreme  necessity,  everything  is 
in  common. 
IG 


242  LEGAL    MAXIMS. 

248.  Incerta  pro  nullis  habentur :  (Dav.  33.) — Things  uncer- 

tain are  reckoned  as  nothing. 

249.  Incerta  quantitas  vitiat  actum :  (1  Rol.  Eep.  4G5.) — An 

uncertain  quantity  vitiates  the  act, 

250.  Incivile  est  nisi  tota  seiitentia  inspecta  de  aliqua  parte 

judicare :  (Hob.  171.) — It  is  unlawful  to  judge  of  any 
part  unless  the  whole  sentence  is  examined. 

251.  Inclusio  unius  est  exclusio  alterius :  (Co.  Litt.  210.) — The 

inclusion  of  one  is  the  exclusion  of  another. 

252.  In  consimili  casu,  consimile  debet  esse  remedium  :  (Hard. 

65.) — In  similar  cases  the  remedy  should  be  similar, 

253.  In  consuetudinibus  non  diuturnitas  temporis  sed  soliditas 

rationis  est  consideranda :  (Co.  Litt.  141.) — In  customs, 
not  the  leagth  of  time  but  the  strength  of  the  reasons 
should  be  considered. 

254.  In  contractis  tacite  insunt  quae  sunt  moris  et  consuetu- 

dinis. — In  contracts,  those  things  which  are  of  manner 
and  custom  are  considered  as  incorporated. 

255.  In  contractibus,  benigna  ;    in  testamentis,  benignior  ;    in 

restitutionibus,  benignissima  interpretatio  facienda  est : 
(Co.  Litt.  112.) — In  contracts,  the  interpretation  is  to  be 
liberal ;  in  wills,  more  liberal ;  in  restitutions,  most  lib- 
eral. 

256.  In  criminalibus  probationes  debent  esse  luce  clariores  : 

(3  Inst.  210.) — In  criminal  cases  the  proofs  ought  to  be 
clearer  than  light. 

257.  In  criminalibus  voluntas  reputabitur  pro  facto  :  (3  Inst. 

106.) — In  criminal  acts  the  will  is  taken  for  the  deed. 

258.  Indefinitum  equipoUet  universali :  (1  Yent.  368.) — The 

indefinite  equals  the  universal. 

259.  Indefinitum  supplet  locum  universalis  :  (4  Co.  77.) — The 

indefinite  supplies  the  place  of  the  universal. 

260.  In    disjunctivis    sufficit    alteram    partem    esse    veram : 

(Wing.  13.) — In  disjunctives  it  sufiices  if  either  part  be 
true. 


LEGAL    MAXIMS.  243 

261.  In  fictione  juris  semper  aequitas  existit :    (11  Co.  51.) — 

In  fiction  of  law  equity  always  exists  :  (Maxim  42.) 

262.  Infinitum  in  jure  reprobatur  :  (9  Co.  45.) — Infinity  in  law 

is  reprehensible. 

263.  In  judicio  non  creditur  nisi  juratis  :    (Cro.  Car.  64.) — In 

judgment  there  is  no  credit  save  to  tilings  sworn. 

264.  In  jure  non  remota  causa,  sed  proxima  spectatur  :    (Bac. 

Max.  Reg.  1.) — In  law  the  proximate,  and  not  the  re- 
mote cause  is  to  be  regarded  :  (Maxim  43.) 

265.  Injuria  illata  judici,  seu  locum  tenenti  regis,  videtur  ipsi 

regi  illata,  maxime  si  fiat  in  exercentem  officii :  (3  Inst. 
1.) — An  injury  offered  to  a  judge,  or  person  representing 
the  king,  is  considered  as  offered  to  the  king  himself, 
especially  if  it  be  done  in  the  exercise  of  his  office. 

266.  Injuria  non  praesumitur  :    (Co.  Litt.  232.) — Injury  is  not 

to  be  presumed. 

267.  In  novo  casu,  novum   remedium   apponendum   est :    (2 

Inst.  3.) — A  new  remedy  is  to  be  applied  to  a  new  case. 

268.  In  odium  spoliatoris  omnia  praesumuntur :    (1  Yern.  19.) 

— All  things  are  presumed  in  odium  of  a  despoiler. 

269.  In  omni  re  nascitur  res  quoB  ipsam  rem  exterminat :    (2 

Inst.  15.) — In  everything  is  born  that  which  destroys 
the  thing  itself. 

270.  In  pari  delicto,  potior  est  conditio  possidentis  :  (4  T.  R. 

564.) — In  equal  fault,  the  condition  of  the  possessor  is 
the  best. 

271.  In  prasparatoriis  ad  judicium  favetur  actori :  (2  Inst.  57.) 

— In  things  pi-eceding  judgment  the  plaintiff  is  fa- 
vored. 

272.  In  pra^scntia  majoris  cessat  potentia  minoris :  (Jenk.  Cent. 

214.) — In  the  presence  of  the  major,  the  power  of  the 
minor  ceases. 


24i  LEGAL     MAXIMS, 

273.  In  quo  quis  delinquit,  in  eo  de  jure  est  punicndus :  (Co, 

Litt.  233.) — In  that  which  any  one  offends,  in  that  ac- 
cording to  the  law  is  he  to  be  punished. 

274.  In  rebus  quae  sunt  favorabilia  animse,  quamvis  sunt  dam- 

nosa  rebus,  fiat  aliqu'ando  extensio  statuti  :  (10  Co. 
101.) — In  things  tliat  are  favorable  to  the  spirit,  though 
injurious  to  the  things,  an  extension  of  a  statute  should 
sometimes  be  made. 

275.  In  re  dubia  magis  inficiatio  quam  affirmatio  intelligenda  : 

(Godb.  37.) — In  a  doubtful  case  the  negative  is  rather 
to  be  understood  than  the  affirmative. 

276.  In  republica  maxime  conservanda  sunt  jura  belli :  (2  Inst. 

58.) — The  laws  of  war  are  especially  to  be  preserved  in 
the  State. 

277.  In  restitutionem,  non  in  poenam,  lisEres  succedit :  (2  Inst. 

198.) — The  heir  succeeds  to  the  restitution,  not  to  the 
penalty. 

278.  Instans  est  finis  unius  temporis  et  principium  alterius: 

(Co.  Litt.  185.) — An  instant  is  the  end  of  one  time,  and 
the  beginning  of  another. 

279.  Intentio  inservire  debet  legibus,  non  leges   intentioni : 

Co.  Litt.  314.) — Intention  ought  to  be  subservient  to 
the  laws  ;  not  the  laws  to  intention. 

280.  Interest  reipublicse  quod  homines  conserventur :  (12  Co. 

62.) — It  concerns  the  State  that  men  be  preserved. 

281.  Interest  reipublicse  res  judicatas  non  rescind! :  (2  Inst. 

359.) — It  concerns  the  State  that  judgments  be  not  re- 
scinded. 

282.  Interest  reipublicae  suprema  hominum   testamenta  rata 

haberi :  (Co.  Litt.  236.) — It  concerns  the  State  that 
men's  last  wills  be  confirmed. 

283.  Interest  reipublicee  ut  quilibet  re  sua  bene  utatur :  (6  Co. 

37.) — It  is  to  the  advantage  of  the  State  that  every  one 
uses  his  property  properly. 


LEGAL     MAXIMS.  215 

284.  Interest  reipublicse  ut  sit  finis  litium  :  (Co.  Litt.  303.) — It 

concerns  tlie  State  that  there  be  an  end  of  lawsuits : 
(Maxim  44.) 

285.  Interpretare  et  concordare  leges  legibns  est  optimus  inter- 

pretandi  modns :  (8  Co.  169.) — To  interjDret  and  to 
reconcile  the  laws  to  laws,  is  the  best  mode  of  interpre- 
tation. 

286.  Interpretatio  fienda  est  ut  res  magis  valeat  quam  pereat : 

(Jenk.  Cent.  198.) — That  interpretation  is  to  be  made, 
that  the  thing  may  rather  stand  than  fall. 

287.  Interpretatio  talis  in  ambiguis  semper  fienda  est,  ut  evi- 

tetur  inconveniens  et  absurdum  :  (4  Inst.  328.') — In  am- 
biguous things  such  an  interpretation  is  to  be  made,  that 
what  is  inconvenient  and  absurd  is  to  be  avoided. 

288.  Interruptio  multiplex  non  tollit  prsescriptionem  semel  ob- 

tentam :  (2  Inst.  654.) — Frequent  interruption  does  not 
take  away  a  prescription  once  acquired. 

289.  In  traditionibus  scriptorum,  non  quod   dictum   est  sed 

quod  gestum  est  inspicitur :  (9  Co.  137.) — In  the  deliv- 
ery of  deeds,  not  what  is  said  but  what  is  done  is  re- 
garded. 

290.  Inveniens  libellum  famosura  et  non  corrumpens  jDunitur  r 

(Moor.  813.) — He  who  finds  a  notorious  libel,  and  does 
not  destroy  it,  is  punished. 

291.  In  verbis  non  verba  sed  res  et  ratio  qucerenda  est :  (Jenk. 

Cent.  132.) — In  words,  not  the  words  but  the  thing  and 
the  meaning  are  to  be  inquired  after. 

292.  Judex  sequitatem  semper  spectare  debet :  (Jenk.   Cent. 

45.) — A  judge  ought  always  to  regard  equity. 

293.  Judex  bonus  nihil  ex  arbitrio  suo  faciat,  nee  propositione 

domesticse  voluntatis,  sed  juxta  leges  et  jura  promin- 
ciet :  (7  Co.  27.) — A  good  judge  does  nothing  from  his 
own  judgment,  or  from  a  dictate  of  private  will ;  but  he 
will  pronounce  according  to  law  and  justice. 


246  LEGAL     MAXIMS. 

294.  Judex  est  lex  loquens :  (7  Co.  4.) — A  judge  is  the  law 

speaking. 

295.  Judex  habere  debet  duos  sales :  salem  sapientise,  ne  sit 

insipidus,  et  salem  conscientire,  ne  sit  diabolus :  (3  Inst. 
147.) — ^A  judge  should  have  two  salts :  the  salt  of  wis- 
dom, lest  he  be  insipid ;  and  the  salt  of  conscience,  lest 
he  be  devilish. 

296.  Judex  non  potest  esse  testis  in  propria  causa:  (4  Inst. 

279.) — A  judge  cannot  be  a  witness  in  his  own  cause. 

297.  Judex  non  potest  injuriam  sibi  datam  punire :  (12  Co. 

113.) — A  judge  cannot  punish  an  injury  done  to  him- 
self. 

298.  Judex  non  reddit  plus  quam  quod  petens  ipse  requirit : 

(2  Inst.  286.) — A  judge  does  not  give  more  than  that 
which  he  seeking,  requires. 

299.  Judices  non  tenentur  exprimere  causam  sententise  suoe : 

(Jenk.  Cent.  75.) — Judges  are  not  bound  to  explain  the 
reason  of  their  sentence. 

300.  Judici  officium  suum  excedenti  non  paretur :  (Jenk.  Cent. 

139.) — To  a  judge  exceeding  his  office  there  is  no  obe- 
dience. 

301.  Judicia  in  deliberationibus  crebro  maturescunt,  in  accel- 

erato  processu  nunquam :  (3  Inst.  210.) — Judgments 
become  frequently  matured  by  deliberations,  never  by 
hurried  j^rocess. 

302.  Judicia  sunt  tanquam  juris  dicta,  et  pro  veritate  accipiun- 

tur :  (2  Inst.  537.) — Judgments  are  as  it  were  the  dicta 
of  the  law,  and  are  received  as  truth. 

303.  Judiciis  posterioribus  fides  est  adhibenda :  (13  Co.  14.) — 

Credit  is  to  be  given  to  the  latest  decisions. 

304.  Judicis  fest  judicare  secundum  allegata  et  probata :  (Dyer, 

12.)— It  is  the  duty  of  a  judge  to  decide  according  to 
facts  alleged  and  approved. 

305.  Judicis  officium  est  opus  diei  in  die  suo  perficere  :  (2  Inst. 


LEGAL     MAXIMS.  247 

256.) — It  is  the  duty  of  a  judge  to  finish  the  work  of 
each  day  within  that  day. 

S06,  Judicis  ofiicium  est  ut  res  ita  tempora  rerum  quserere, 
quaesito  tempore  tutus  eris  :  (Co.  Litt.  171.) — It  is  the 
duty  of  a  judge  to  inquire  as  well  into  the  time  of 
things  as  into  things  themselves  ;  by  inquiring  into  the 
time,  you  will  be  safe. 

307.  Judicium  a  non  suo  judiee  datum  nuUius  est  momenti : 
(10  Co.  76.) — A  judgment  given  by  an  improper  judge 
is  of  no  importance, 

508.  Judicium  non  debet  esse  illusorium ;  suum  eiiectum  ha- 
bere debet :  (2  Inst.  341.) — A  judgment  ought  not  to  be 
illusory ;  it  ought  to  have  its  consequence. 

-309.  Judicium  redditur  in  invitum,  in  prjesumptione  legis  : 
(Co.  Litt.  218.) — Judgment  in  presumption  of  law,  is 
given  contrary  to  inclination. 

'310.  Judicium  semper  pro  veritate  accipitur :  (2  Inst.  380.) — 
Judgment  is  always  taken  for  truth. 

311.  Jura  ecclesiastica  limita  sunt  infra  limites  separatos :  (3 

Buls.  53.) — Ecclesiastical  laws  are  limited  within  sepa- 
rate bounds. 

312.  Jura  eodem  modo  destruuntur    quo    constituuntur :    (2 

Dwarr.  Stat.  672.) — Laws   are   abrogated  by  the  same 
means  by  which  they  were  made. 

313.  Jura  naturoe  sunt  immutabilia  :  (Jacob,  63.) — The  laws  of 

nature  are  unchangeable. 

314.  Jura  publica  antef erenda  privatis :  (Co.  Litt.  130.) — Pub- 

lic rights  are  to  be  preferred  to  private. 

315.  Jura  publica  ex  privato  promiscue   decidi  non  debent : 

(Co.  Litt.  181  h.) — Public  rights  ought  not  to  be  pro- 
miscuously decided  out  of  a  private  transaction. 

316.  Jura  regis  specialia  non  conceduntur  per  generalia  verba : 

(Jenk.  Cent.  103.) — The  special  rights  of  the  king  arc 
not  affected  by  general  words. 


24:8  LEGAL     MAXIMS. 

317.  Juramentum  est  indivisibile,  et  non  est  admittendum  in 

parte  vemm  et  in  parte  f alsum :  (4  Inst.  279.) — An  oath 
is  indivisible,  and  is  not  to  be  received  as  partly  trii& 
and  partly  false. 

318.  Jurato  creditur  in  judicio :    (3  Inst,   79.) — In  judgment 

credit  is  given  to  the  swearer. 

319.  Juratores   debent  esse  vicini,  sufficientes,  et  minus  sua- 

pecti :  (Jenk.  Cent.  141.) — Jurors  ouglit  to  be  neigh- 
bors, of  sufficient  estate,  and  free  from  suspicion. 

320.  Jurare  est  Deum  in  testem  vocare,  et  est  actus  divini  cul- 

tus  :  (3  Inst.  165.) — To  swear  is  to  call  God  to  witness^, 
and  is  an  act  of  religion. 

321.  Juratores  sunt  judices  facti :    (Jenk.  Cent.  61.) — Jurors 

are  the  judges  of  fact. 

322.  Juri  non  est  consonum  quod  aliquis  accessorius  in  curia. 

regis  convincatur  antequam  aliquis  de  facto  fuerit  at- 
tinctus :  (2  Inst.  183.) — It  is  not  consonant  to  justice 
that  any  accessory  should  be  convicted  in  the  king's 
court,  before  some  one  has  been  attainted  of  the  fact. 

323.  Juris  eifectus  in  executiane  consistit :  (Co.  Litt.  289.) — 

The  eifect  of  law  consists  in  execution. 

324.  Jus  accrescendi  inter  mercatores,  pro  beneficio  commercii, 

locum  non  habet:  (Co.  Litt.  182.) — For  the  benefit  of 
commerce,  there  is  not  any  right  of  survivorship  among 
merchants :  (Maxim  45.) 

325.  Jus  accrescendi  prsefertur  oneribus :    (Co.  Litt.  185.) — 

The  right  of  survivorship  is  preferred  to  incumbrances. 

326.  Jus  accrescendi  prsefertur  ultimse  voluntati :    (Co.  Litt. 

185.) — The  right  of  survivorship  is  preferred  to  the 
last  will. 

327.  Jus  descendit,  et  non  terra :    (Co.  Litt.  345.) — The  right 

descends  and  not  the  land. 

328.  Jus   est   norma   recti ;  et  qnicquid   est   contra   normam 

recti  est  injuria :  (3  Buls.  313.) — Law  is  a  rule  of  right ; 


LEGAL     MAXIMS.  249 

and  whatever  is  contrary  to  the  rule  of  right  is  a. 
wrong. 

329.  Jus  ex  injuria  non  oritur :  (4  Bing.  639.)— A  right  does 

not  arise  out  of  a  wrong. 

330.  Jusjurandi  forma  verbis  differt,  re  convenit ;  hunc  enim 

sensum  habere  debet,  ut  Deus  invocetur :  (Grotius,  1.  2, 
c.  13,  §  10.) — The  form  of  taking  an  oath,  thougli  it 
differs  in  words,  agrees  in  meaning ;  for  it  ought  to 
have  this  sense,  that  the  Deity  be  iuToked. 

331.  Jusjurandum  inter  alios  factum  nee  nocere  nee  prodesse 

debet :  (4  Inst.  279.) — An  oath  made  by  others  in  an- 
other proceeding  ought  neither  to  hurt  nor  profit. 

332.  Jus  naturale  est  quod  apud  onines  homines  eandem  habet 

potentiam  :  (7  Co.  12.)— ]N"atural  right  is  that  which  has 
the  same  force  among  all  men. 

333.  Jus  non  habenti  tute  non  paretur  :  (Hob.  14G.)— It  is  not 

safe  to  obey  him  who  has  no  right. 

334.  Jus  publicum  et  privatum  quod  ex  naturalibus  prseceptis 

aut  gentium,  aut  civilibus  est  collectum,  et  quod  in  jure 
scripto.  Jus  appelatur  id  in  lege  Anglise  rectum  esse 
dicitur:  (Co.  Litt.  158.)— Public  and  private  law  is  that 
which  is  collected  from  natural  principles,  either  of 
:'  nations  or  in  States,  and  what  is  in  written  law.     That 

is  called  "  jus  "  which  by  the  law  of  England  is  said  to 
be  right. 

335.  Jus    respicit    sequitatem :    (Co.  Litt.   24.) — Law   regards 

equity. 

336.  Justitia  debet  esse  libera,  quia  nihil  iniquius  venali  jus- 

titia ;  plena,  quia  justitia  non  debet  claudicare ;  et 
celeris,  quia  dilatio  est  quajdam  negatio  :  (2  Inst.  50.) — 
Justice  ought  to  be  unbought,  because  nothing  is  more 
hateful  than  venal  justice  ;  free,  for  justice  ought  not 
to  be  shut  out ;  and  quick,  for  delay  is  a  certain  denial. 

837.  Justitia  est  duplex  ;  viz.,  severe  puniens  et  vere  prae- 
veniens  :  (3  Inst.  Epil.) — Justice  is  double  ;  punishing 
with  severity,  proventiriy  with  lenity. 


250  LEGAL    MAXIMS. 

338.  Justitia  firmatur  solium  :  (3  Inst.  140.) — Justice  strength- 

ens tlie  throne. 

339.  Justitia  nemini  neganda  est :  (Jenk.  Cent.  178.) — Justice 

is  to  be  denied  to  none. 

540.  Justitia  non  est  neganda,  non  difierenda :  (Jenk.  Cent.  93.) 
Justice  is  neither  to  be  denied  nor  delayed. 

341.  Justitia  non  novit  patrem  nee  matrem ;  solam  veritatem 

spectat  justitia :  (1  Buls.  199.) — Justice  knows  neither 
father  nor  mother,  but  regards  trutli  alone. 

342.  Justum  non  est  aliquem  antenatum  mortuum  facere  bas- 

tardum  qui  pro  tota  vita  sua  pro  legitime  habetur :  (8 
Co.  101.) — It  is  not  just  to  make  a  man  who  all  his  life 
has  been  accounted  legitimate,  a  bastard  after  his  death. 

343.  Legatus  regis  vice  fungitur  a  quo  destinatur,  et  hono- 

randus  est  sicut  ille  cujus  vicem  gerit:  (12  Co.  17.) — An 
ambassador  fills  the  place  of  the  king  by  whom  he  is 
sent,  and  is  to  be  honored  as  he  is  whose  place  he  fills. 

344.  Leges  Angliae  sunt  tripartitge  :  jus  commune,  consuetu- 

dines,  ac  decreta  comitiorum. — The  laws  of  England  are 
threefold :  common  law,  customs,  and  decrees  of  Par- 
liament. 

345.  Leges  posteriores  priores  contrarias  abrogant :  (1  Co.  25.) 

— Later  laws  abrogate  prior  contrary  laws :  (Maxim  46.) 

346.  Legibus  sumptis  desinentibus,  lege  naturjs  utendum  est : 

(2  Rol.  Eep.  98.) — Laws  imposed  by  tlie  State,  failing, 
we -must  .act  by  the  law  of  nature. 

347.  Legis  constructio  non  facit  injuriam :  (Co.  Litt.  183.) — 

The 'Construction  of  the  law  does  no  injury. 

348.  Legislatorum  est  viva  vox,  rebus  et  non  verbis,  legem  im- 

ponere :  (10  Co.  101.) — The  voice  of  legislators  is  a 
living  voice  to  impose  law  on  things  and  not  on  words. 

349.  Legitime  imperanti  parere  necesse  est :  (Jenk,  Cent.  120.) 

— It  is  necessary  to  obey  one  legitimately  commanding. 


LEGAL     MAXIMS.  251 

350.  Le  lej  de  Dieu  et  le  lej  de  terre  sont  tout  uu,  et  I'un  et 

I'autre  preferre  et  savour  le  common  et  publique  bien 
del  terre  :  (Keilw.  191.) — The  law  of  God  and  the  law 
of  the  land  are  all  one,  and  both  preserve  and  favor  the 
common  and  public  good  of  the  land. 

351.  Le  lej  est  le  plus  haut  enheritance  que  le  roy  ad,  car  per 

le  ley  il  mesme  et  touts  ses  sujets  sont  rules,  et  si  le  lej 
ne  fuit,  nul  roy  ne  nul  enheritance  serra :  (1  J.  H.  6, 
63.) — The  law  is  the  highest  inheritance  that  the  king 
possesses,  for  by  the  law  both  he  and  all  his  subjects 
are  ruled ;  and  if  there  were  no  law,  there  would  be 
neither  king  nor  inheritance. 

352.  Le  ley  voit  plus  tost  suffer  un  mischiefe  que  un  incon- 

venience :  (Litt.  §  321.) — The  law  would  rather  suffer  a 
mischief  than  an  inconvenience. 

353.  Lex  aliquando  sequitur  sequitatem  :  (3  Wils.  119.) — Law 

sometimes  follows  equity. 

354.  Lex  Anglise  est  lex  misericordiae :  (2  Inst.  315.) — The  law 

of  England  is  a  law  of  mercy. 

355.  Lex  Angliae  nunquam  matris  sed  semper  patris  condi- 

tionem  imitari  partum  judicat :  (Co.  Litt.  123.) — The 
law  of  England  rules  that  the  offsjtring  shall  always  fol- 
low the  condition  of  the  father ;  never  that  of  the 
mother. 

356.  Lex  Angliae  nunquam  sine  Parliamento  mutare  non  po- 

test:  (2  Inst.  218.) — The  law  of  England  cannot  be 
changed  but  by  Parliament. 

357.  Lex  citius  tolerare  vult  privatum  damnum  quam  publi- 

cum malum  :  (Co.  Litt.  132.) — The  law  should  more 
readily  tolerate  a  private  loss  than  a  public  evil. 

358.  Lex  deficere  non  potest  in  justitia  exhibenda :  (Co.  Litt. 

197.) — The  law  cannot  be  defective  in  dispensing 
justice. 

359.  Lex  dilationes  semper  exhorret :  (2  Inst.  240.) — The  law 

always  abhors  delays. 


252  LEGALMAXIMS. 

360.  Lex  est  dictamen  rationis  :  (Jenk.   Cent.  117.) — Law  is 

the  dictate  of  reason. 

361.  Lex   est   exercitns   judicum  tutissimus  ductor:  (2  Inst. 

526.) — The  law  is  the  safest  leader  of  tlie  army  of 
judges. 

362.  Lex  est  ratio  summa,  quiB  jubet  quae  sunt  utilia  et  neces- 

saria,  et  contraria  prohibet :  (Co.  Litt.  319.) — Law  is  the 
highest  reason,  which  commands  those  things  which  are 
useful  and  necessary,  and  forbids  what  is  contrary 
thereto. 

363.  Lex  est  santio  sancta,  jubens  honesta,  et  prohibens  con- 

traria: (2  Inst.  587.) — Law  is  a  sacred  sanction,  com- 
manding what  is  proper,  and  forbidding  what  is  not. 

364.  Lex  est  tutissima  cassis ;  sub  clypeo  legis  nemo  decipitur : 

(2  Inst.  56.) — Law  is  the  safest  helmet ;  under  the  shield 
of  the  law  none  are  deceived. 

365.  Lex  fingit  ubi  subsistit  tequitas :  (11  Co.  90.) — The  law 

feigns  where  equity  subsists. 

366.  Lex  intendit  vicinum  vicini  facta  scire  :  (Co.  Litt.  78.) — 

The  law  presumes  one  neighbor  to  know  the  actions  of 
another. 

367.  Lex  necessitatis  est  lex  temporis,  i.  e.,  instantis :  (Hob. 

159.) — The  law  of  necessity  is  the  law  of  time,  that  is, 
present. 

368.  Lex  neminem  cogit  ad  vana  seu  inutilia  peragenda :  (5  Co. 

21.) — The  law  does  not  require  any  one  to  do  vain  or 
useless  things. 

369.  Lex  n©n  a  rege  est  violanda :  (Jenk.  Cent.  7.) — The  law 

is  not  to  be  violated  by  the  king. 

370.  Lex  non  curat  de  minimis  :  (Hob.  88.) — The  law  cares  not 

about  trifles. 

371.  Lex  non  cogit  ad  impossibilia :  (Hob.  96.) — The  law  re- 

quires not  impossibilities. 


LEGAL     MAXIMS.  253 

S72.  Lex  non  deficit  in  justitia  exliibenda :  (Jenk.  Cent.  30.) — 
The  law  is  not  defective  in  developing  justice. 

-373.  Lex  non  favet  delicatorum  votis  :  (9  Co.  58.) — The  law- 
favors  not  the  wishes  of  the  dainty. 

374.  Lex  non  intendit  aliquid  impossibile :  (12  Co.  89.) — The 

law  intends  not  anything  impossible. 

375.  Lex  non  patitur  fractiones  et  divisiones  statiitorum :  (1 

Co.  87.) — The  law  suffers  no  fractions  and  divisions  of 
statutes. 

376.  Lex  non  requirit  verificari  quod  apparet  curiae  :  (9  Co.  54.) 

— The  law  does  not  require  that  which  is  apparent  to 
the  court  to  be  verified. 

377.  Lex  plus  laudatur  quando  ratione  probata :  (Litt.  Epil.) — 

The  law  is  the  more  praised  when  it  is  consonant  to 
reason. 

378.  Lex  prospicit  non  respicit :  (Jenk.  Cent.  284.) — The  law 

looks  forward,  not  backward. 

379.  Lex  punit  mendacium :  (Jenk.  Cent.  15.) — The  law  pun- 

ishes a  lie. 

380.  Lex  rejicit  superfiua,  pugnantia,  incongrua  :  (Jenk.  Cent. 

133.) — The  law  rejects  superfluous,  contradictory,  and 
incongruous  things. 

381.  Lex  reprobat  moram  :  (Jenk.  Cent.  35.) — The  law  dislikes 

delay. 

382.  Lex  scripta  si  cesset,  id  custodiri  oportet  quod  moribus  et 

consuetudine  inductum  est,  et  si  qua  in  re  hoc  defecerit, 
tunc  id  quod  proximum  et  consequens  ei  est :  (7  Co. 
19.) — If  the  written  law  be  silent,  that  which  is  drawn 
from  manners  and  custom  ought  to  be  observed  ;  and  if 
in  that  anything  is  defective,  then  that  whicli  is  next 
and  analagous  to  it. 

383.  Lex  semper  dabit  remedium  :    (Jacob,  69.) — The  law  will 

always  give  a  remedy. 


254  •  LEGAL    MAXIMS. 

384.  Lex  semper  intendit  quod  convenit  rationi :    (Co.  Litt. 

78.) — TLie  law  always  intends  wliat  is  agreeable  to  rea- 
son. 

385.  Lex  spectat  naturae  ordinem :    (Co.  Litt.  197.) — The  law 

regards  the  order  of  nature. 

386.  Lex  succurrit  ignoranti :    (Jenk.  Cent.  15.) — The  law  as- 

sists the  ignorant. 

387.  Lex  uno  ore  omnes  alloquitur :    (2  Inst.  184.) — The  law 

speaks  to  all  with  the  same  mouth. 

388.  Liberata  pecunia  non  liberat  offerentem  :  (Co.  Litt,  207.) 

— Money  being  restored  does  not  set  free  the  party  of- 
fering. 

389.  Libertas  est  naturalis  facultas   ejus   quid  cuique  facere 

libet,  nisi  quod  de  jure  aut  vi  prohibetur :  (Co.  Litt. 
116.) — Liberty  is  that  rational  faculty  which  permits 
every  one  to  do  anything  but  that  which  is  restrained 
by  law  or  force. 

390.  Libertas  est  res  inestimabilis  :    (Jenk.  Cent,  52.) — Liberty 

is  an  inestimable  thing. 

391.  Libertates  regales  ad  coronam  spectantes  ex  concessione 

regum  a  coronam  exierunt :  (2  Inst,  496,) — Royal  pre- 
rogatives relating  to  the  crown  depart  from  the  crown 
by  the  consent  of  the  kings, 

392.  Libertinum  ingratum  leges  civiles  in  pristinum  servitu- 

tem  redigant ;  sed  leges  Anglise  semel  manumissum 
semper  liberum  judicant :  (Co.  Litt,  137.) — The  civil 
laws  reduce  an  ungrateful  freedman  to  his  original 
slavery,  but  the  laws  of  England  regard  a  man  once 
manumitted  as  ever  after  free. 

393.  Licet  dispositio  de  interesse  futuro  sit  inutilis,  tamen  fieri 

potest  declaratio  prsecedens  qu-je  sortiatur  effectum,  in- 
terveniente  novo  actu :  (Bac,  Max,  Reg.  14,) — Al- 
though the  grant  of  a  future  interest  is  invalid,  yet 
a  precedent  declaration  may  be  made,  which  will  take 
effect  on  tlie  intervention  of  some  new  act :  (Maxtm 
47.) 


LEGAL    MAXIMS.  255 

394.  Ligeantia  est  quasi  legis  essentia ;    est  vinculum  fidei : 

(Co.  Litt.  129.) — Allegiance  is  as  it  were  the  essence  of 
law  ;  it  is  the  chain  of  faith. 

395.  Ligeantia  naturalis,  nullis  claustris  coercetur,  nullis  metis 

refrgenatur,  nullis  finibus  premitur  :  (7  Co.  10.) — Natu- 
ral allegiance  is  restrained  by  no  barriers,  reined  by  no 
bounds,  compressed  by  no  limits. 

39G.  Linea  recta  semper  pra3fertur  transversali :  (Co.  Litt.  10.) 
— The  right  line  is  always  preferred  to  the  collateral. 

397.  Litis  nomen,  omnem  actionem  significat,  sive  in  rem,  sive 

in  personam  sit :  (Co.  Litt.  292.) — A  lawsuit  signifies 
every  action,  whether  it  be  for  the  thing  or  against  the 
person. 

398.  Locus  pro  solutione  reditus  aut  pecunite  secundum  con- 

ditionem  dimssionis  aut  obligationis  est  stricte  obser- 
vandus  :  (4  Co.  73.) — A  place,  according  to  the  condition 
of  a  lease  or  bond,  for  the  payment  of  rent  or  money, 
is  to  be  strictly  observed. 

399.  Longa  possessio  est  pacis  jus :    (Co.  Litt.  6.) — Long  pos- 

session is  the  law  of  peace. 

400.  Longa  possessio  parit  jus  possidendi,  et  tollit  actionem 

vero  domino :  (Co.  Litt.  110.) — Long  possession  pro- 
duces the  right  of  possession,  and  takes  away  an  action 
from  the  true  owner. 

401.  Longum  tempus  et  longus  usus,  qui  excedit  memoriam 

homiimm,  sufficit  pro  jure  :  (Co.  Litt.  115.) — Long  time 
and  long  use,  which  exceeds  the  memory  of  mail,  suf- 
fices in  law. 

402.  Lou  le  ley  done  chose,  la  ceo  done  remedie  a  vener  a  ceo : 

(2  Rol.  R.  17.) — Where  the  law  gives  a  right,  it  gives  a 
remedy  to  recover. 

403.  Magister  rerum  usus  ;  magistra  rerum  cxperientia  :  (Co. 

Litt.  229.) — Use  is  the  master  of  things ;  experience  the 
mistress  of  things. 

404.  Major  hoereditas  venit  unicuique  nostrum  a  jure  et  Icgibus 


258  LEGAL     MAXIMS. 

quam  a  parentibus  :  (2  Inst.  56.) — A  greater  inheritance 
comes  to  every  one  of  us  from  right  and  the  laws  than 
from  parents. 

405.  Majus  continet  minus:  (Jenk.  Cent.  208.) — The  greater 

contains  the  less. 

406.  Majus  dignum,  trahit  ad  se  minus  dignum  :  (1  Inst.  43.) — 

The  more  worthy  draws  with  it  tha  less  worthy. 

407.  Majus  est  delictum  seipsum  occidere  quam  alium  :  (3  Inst. 

54.) — It  is  a  greater  crime  to  kill  one's  self  than  another. 

408.  Mala  grammatica  non  vitiat  chartum.     Sedin  expositione 

instrumentorum  mala  grammatica  quoad  fieri  possit 
evitanda  est :  (6  Co.  39.) — Bad  grammar  does  not  vitiate 
a  charter.  But  in  the  exposition  of  instruments,  bad 
grammar,  so  far  as  it  can  be  done,  is  to  be  avoided. 

409.  Maledicta  expositio  qupe  corrumpit  textum  :  (4  Co.  35.) — 

It  is  a  bad  exposition  which  corrupts  the  text. 

410.  Maleficia  non  debent  remanere  impunita ;  et  impunitaa 

continuum  affectum  tribuit  delinquenti :  (4  Co.  45.) — 
Evil  deeds  ought  not  to  remain  unpunished ;  and  im- 
punity affords  continual  excitement  to  the  delinquent. 

411.  Maleficia  propositis  distinguuntur :  (Jenk.  Cent.  290.) — 

Evil  deeds  are  distinguished  from  evil  purposes. 

412.  Malitia  supplet  aetatem :  (Dyer,  104  h.) — Malice  supplies 

age. 

413.  Malum  non  prsesumitur:  (4  Co.  72.) — Evil  is  not  pre- 

sumed. 

414.  Malus  usus  est  abolendus,  quia  in  consuetudinibus,  non 

diuturnitas  temporis,  sed  solidatas  rationis  est  consider- 
anda :  (Co.  Litt.  141.) — An  evil  custom  is  to  be  abol- 
ished, because,  in  customs,  not  length  of  time,  but  so- 
lidity of  reason  is  to  be  considered. 

415.  Mandatarius  terminos  sibi  positos  transgredi  non  potest : 

(Jenk,  Cent,  53,) — A  mandatory  cannot  exceed  the 
bounds  placed  upon  himself. 


LEGAL    MAXIMS.  257 

416.  Manerium  dicitur   a  manendo,   secundum  excellentiam, 

sedes  magna,  fixa  et  stabilis  :  (Co.  Litt.  58.) — A  manor 
is  called  from  "  manendo,"  a  seat,  according  to  its  excel- 
lence, great,  fixed,  and  firm. 

417.  Manus  mortua,  quia  possessio  est  immortalis,  manus  pro 

possessione  et  mortua  pro  immortali :  (Co.  Litt.  2.) — 
Mortmain  (dead  hand)  because  it  is  an  immortal  pos- 
session ;  "  manus  "  stands  for  possession,  and  "  mortua  " 
for  immortal. 

418.  Matrimonium  subsequens  legitimos  facit  quoad  sacerdo- 

tium,  non  quoad  successionem,  propter  consuetudinem 
regni,  quae  se  habet  in  contrarium  :  (Co.  Litt.  345.) — A 
subsequent  marriage  makes  the  children  legitimate  so 
far  as  relates  to  the  priesthood,  not  as  to  the  succession, 
on  account  of  the  custom  of  the  kingdom,  which  is  con- 
trary thereto. 

419.  Maturiora  sunt  vota  mulierum  quam  virorum  :  (6  Co.  71.) 

— The  promises  of  women  are  prompter  than  those  of 
men. 

420.  Maxime  ita  dicta  quia  maxima  est  ejus  dignitas  et  certis- 

sima  auctoritas,  atque  quod  maxime  omnibus  probetur : 
(Co.  Litt.  11.) — A  maxim  is  so  called  because  its  dignity 
is  chiefest,  and  its  authority  the  most  certain,  and  be- 
cause universally  approved  by  all. 

421.  Maximus   erroris   populus  magister:    (Bac.   Max.) — The 

people  is  the  greatest  master  of  error. 

422.  Melior  est  justitia  vere  prgeveniens,  quam  severe  puniens  : 

(3  Inst.  Epil.) — Justice  truly  preventing  is  better  than 
severely  punishing. 

423.  Melior  est  conditio  possidentis  et  rei  quam  actoris  :  (4  Inst. 

180.) — The  condition  of  the  possessor  is  the  best ;  and 
that  of  the  defendant  than  that  of  the  plaintiff. 

424.  Melior   est   conditio  possidentis,  ubi  neuter  jus  habet : 

(Jenk.  Cent.  118.) — The  condition  of  the  possessor  is  the 
better,  where  neither  of  the  two  have  a  right. 
17 


258  LEGAL    MAXIMS. 

425.  Meliorem  conditionem  ecclesiae  suae  facere  potest  praela- 

tu8,  deteriorem  nequaquam  :  (Co.  Litt.  101.) — A  bishop 
can  make  the  condition  of  his  own  church  better,  hy 
no  means  worse. 

426.  Meliorem  conditionem  stiam  facere  potest  minor,  deteri- 

orem nequaquam  :  (Co.  Litt.  o37.) — A  minor  can  make 
his  own  condition  better,  but  by  no  means  worse. 

427.  Mens  testatoris  in  testamentis  spectanda  est :  (Jenk.  Cent. 

227.) — The  testator's  intention  is  to  be  regarded  in  wills. 

428.  Mentiri  est  contra  mentem  ire  :  (3  Buls.  260.) — To  lie  is 

to  go  against  the  mind. 

420.  Merito  beneficium  legis  amittit,  qui  legem  ipsam  sub- 
vertere  intendit :  (2  Inst.  53.) — He  justly  loses  the  bene- 
fit of  law  who  purposes  to  overturn  the  law  itself. 

430.  Minatur  innocentibus,  qui  parcit  nocentibus :  (4  Co.  45.) — 

He  threatens  the  innocent  who  spares  the  guilty. 

431.  Minima  poena  corporalis  est  major  qualibet  pecuniara  : 

(2  Inst.  220.) — The  smallest  bodily  punishment  is  greater 
than  any  pecuniary  one. 

432.  Minime   mutanda   sunt  quae   certam   habent   interpreta- 

tionem  :  (Co.  Litt.  365.) — Things  which  have  a  certain 
interpretation  are  to  be  altered  as  little  as  possible. 

433.  Minor  ante  tempus  agere  non  potest  in  casu  proprietatis 

nee  etiam  convenire ;  differetur  usque  aetatem  ;  sed  non 
cadit  breve :  (2  Inst.  291.) — A  minor  before  majority 
cannot  act  in  a  case  of  property,  not  even  to  agree  ;  it 
should  be  deferred  until  majority  ;  but  a  w^rit  does  not 
fail. 

434.  Minor  jurare  non  potest :  (Co.  Litt.  172.) — A  minor  can- 

not swear, 

435.  Minor  minorem  custodire  non  debet ;  alios  enim  praesu- 

mitur  male  regere  qui  seipsum  regere  nescit :  (Co.  Litt. 
88.) — A  minor  cannot  be  guardian  to  a  minor,  for  he  is 


LEGAL    MAXIMS.  259 

presumed  to  direct  others  badly  who  knows  not  how  to 
direct  himself. 

436.  Minor,  qui  infra  aetatem  12  annorum  fuerit,  utlegari  non 

potest,  nee  extra  legem  poni,  quia  ante  talem  setatem, 
non  est  sub  lege  aliqua :  (Co.  Litt.  128.) — A  minor  who 
is  under  twelve  years  of  age,  cannot  be  outlawed,  nor 
placed  without  the  law,  because  before  such  age  he  is  not 
under  any  law. 

437.  Misera  est  servitus,  ubi  jus  est  vagum  aut  incertum :  (4c 

Inst.  246.) — Obedience  is  miserable,  where  the  law  is 
vague  and  uncertain. 

438.  Modus  et  conventio  vincunt  legem  :  (2  Co.  73.) — Custom.: 

and  agreement  overrule  law  :  (IMaxim  48.) 

439.  Modus  legem  dat  donationi :  (Plow.  Com.  251.): — Agree- 

ment gives  law  to  the  gift. 

440.  Monetandi  jus  comprehenditur  in  regalibus  qnse  nunquam 

a  regio  sceptro  abdicantur:  (Dav.  18.) — The  right  of 
coining  money  is  comprehended  amongst  those  rights 
of  royalty  which  are  never  separated  from  the  kingly 
sceptre. 

441.  Monumenta  quae  nos  recorda  vocamus  sunt  veritatis  et 

vetustatis  vestigia :  (Co.  Litt.  118.) — Monuments  which 
we  call  records,  are  the  vestiges  of  truth  and  antiquity. 

442.  Mors  dicitur  ultimum  supplicium :  (3  Inst.  212.) — Death 

is  denominated  the  extreme  penalty. 

443.  Mors  omnia  solvit :  (Jenk.  Cent,  160.) — Death  dissolves 

all  things. 

444.  Mulieres  ad  probationem  status  hominis  admitti  non  de- 

bent  :  (Co.  Litt.  6.) — Women  ought  not  to  be  admitted 
to  proof  of  the  estate  of  a  man. 

445.  Multa  conceduntur  per  obliquum,  quse  non  conceduntur 

de  directo :  (6  Co.  47.) — Many  things  are  obliquely  con- 
ceded which  are  not  conceded  directly. 


260  LEGAL    MAXIMS. 

446.  Multa  in  jure  communi  contra  rationem  disputandi,  pro 

conunnni  utilitate  introducta  sunt :  (Co.  Litt.  70.) — 
Many  things  contrary  to  the  rule  of  argument  are  intro- 
duced into  the  common  law  for  common  utility. 

447.  Multa  multo  exercitatione  facilius  quam  regulis  percipies  : 

(4  Inst.  50.) — You  will  perceive  many  things  more  easily 
by  practice  than  by  rules. 

448.  Multitudinem  decem  f acunt :  (Co.  Litt.  247.) — Ten  make 

a  multitude. 

449.  Multitudo  errantium  non  parit  errori  patrocinium :  (11 

Co.  75.) — Tlie  multitude  of  those  who  err  gives  no  ex- 
cuse to  error. 

450.  Multitudo  imperitorum  perdit  curiam :  (2  Inst.  219.) — A 

multitude  of  ignorant  persons  destroys  a  court. 

451.  IS'atuea  appetit  perfectum ;  ita  et  lex :  (Hob.  144.) — Na- 

ture desires  perfection ;  so  does  law. 

452.  Natura  non  facit  saltum ;  ita  nee  lex :  (Co.  Litt.  238.) — 

Nature  takes  no  leap ;  neither  does  law. 

4:53.  Natura  non  facit  vacuum,  nee  lex  supervacuum  :  (Co. 
Litt.  79.) — Nature  makes  no  vacuum,  law  no  super- 
vacuum. 

454.  Naturae  vis  maxima :  (Noy  Max.  26.) — The  highest  force 
is  that  of  nature. 

456.  Necessitas  est  lex  temporis  et  loci :  (Hale  P.  C.  54.) — Ne- 
cessity is  the  law  of  time  and  place. 

456.  Necessitas  excusat  aut  extenuat  delictum  in  capitalibus, 

quod  non  operatur  idem  in  civilibus  :  (Bacon  Max.  Reg. 
25.) — Necessity  excuses  or  extenuates  delinquency  in 
capital,  which  would  not  operate  the  same  in  civil  cases. 

457.  Necessitas  facit  licitum  quod  alias  non  est  licitum :    (10 

Co.  61.) — Necessity  makes  that  lawful  which  otherwise 
is  not  lawful. 

458.  Necessitas  inducit  privilegium  quoad  jura  privata  :  (Bac. 


LEGAL    MAXIMS.  261 

Max.  25.) — Necessity  induces,  or  gives,  a  privilege  as  to 
private  rights :  (Maxim  49.) 

459.  Kecessitas  non  liabet  legem  :  (Plowd.  18.) — ISTecessity  has 

no  law. 

460.  Necessitas  publica  major  est  qnam  privata  :  (Noj  Max. 

34.) — Public  necessity  is  greater  than  private. 

461.  Necessitas,  quod  cogit,  defendit :    (Hale  P.  C.  54.) — Ne- 

cessity defends  what  it  compels. 

462.  Necessitas  vincit  legem ;   legum  vincula  irridet :    (Hob. 

144.) — Necessity  overcomes  law  ;    it  breaks  the  chains 
of  law. 

463.  Nee  tempus  nee  locus  occurrit  regi :  (Jenk.  Cent.  190.) — 

Neither  time  nor  place  affects  the  king. 

464.  Nee  veniam,  effuso  sanguine,  casus  liabet :  (3  Inst.  57.) — 

Where  blood  is  spilled  the  case  is  unpardonable. 

465.  Nee  veniam,  Igeso  numine,  casus  habet :  (Jenk.  Cent.  167.) 

— Where  the  divinity  is  insulted,  the  case  is  unpardon- 
able. 

466.  Negatio  conclusionis  est  error  in  lege :  (Wing.  268.) — The 

negative  of  a  conclusion  is  error  in  law. 

467.  Negatio  destruit  negationem,  et  ambse   faciunt   affirma- 

tivum :  (Co.  Litt.  146.) — A  negative  destroys  a  negative, 
and  both  make  an  affirmative. 

468.  Negligentia  semper   habet    infortuniam   comitem :    (Co. 

Litt.  246.) — Neglect  always  has  misfortune  for  a  com- 
panion. 

469.  Neminem  oportet  esse  sapientiorem  legibus :    (Co.  Litt. 

97.) — Nobody  needs  be  wiser  than  the  laws. 

470.  Nemo  admittendus  est  inhabilitare  seipsum :  (Jenk.  Cent. 

40.) — Nobody  is  to  be  admitted  to  incapacitate  himself. 

471.  Nemo  cogitur  rem  suam  vendere,  etiam  justo  pretio  :  (4 

Inst.  275.) — No  one  is  obliged  to  sell  his  own  property, 
even  for  the  full  value. 


262  LEGAL     MAXIMS 

472.  Nemo  contra  factum  sumn  venire  potest :    (2  Inst.  6G.) — 

No  one  can  come  against  his  own  deed. 

473.  Nemo  dat  qui  non  liabet :    (Jenk.  Cent.  250.) — No  one 

gives  who  possesses  not. 

474.  Nemo  debet  bis  punire  pro  uno  delicto  :    et  Deus,  non 

agit  bis  in  ipsum  :  (4  Co.  43.) — No  one  should  be  pun- 
ished twice  for  one  fault ;  and  God  punishes  not  twice 
against  Himself. 

475.  Nemo  debet  bis  vexari,  si  constat  curiae  quod  sit  pro  una 

et  eadem  causa  :  (5  Co.  61.) — No  man  ought  to  be  twice 
punished,  if  it  be  proved  to  the  court  that  it  be  for  one 
and  the  same  cause  :  (Maxim  50.) 

476.  Nemo  debet  ex  aliena  jactura  lucrari :  (Jenk.  Cent.  4.) — 

No  person  ought  to  gain  by  another  person's  loss. 

477.  Nemo  debet  esse  judex  in  propria  causa :  (12  Co.  113.) — 

No  one  should  be  judge  in  his  own  cause :  (Maxim  51.) 

478.  Nemo  est  lieeres  viventis :  (Co.  Litt.  8.) — No  one  is  heir 

of  the  living  :  (Maxim  52.) 

479.  Nemo   ex   alterius   detrimento   fieri   debet    locupletari : 

(Jenk.  Cent.  4.) — No  man  ought  to  be  made  rich  out  of 
another's  injury. 

480.  Nemo  ex  dolo  suo  proprio  relevetur,  aut  auxilium  capiat : 

(Jur.  Civ.) — No  one  is  relieved  or  gains  an  advantage 
from  his  own  proper  deceit. 

481.  Nemo  inauditus  nee  summonitus  condemnari  debet,  si  non 

sit  contumax  :  (Jenk.  Cent.  8.) — No  man  should  be  con- 
demned unlieard  and  unsummoned,  unless  for  contu- 
macy. 

482.  Nemo  militans  Deo  implicetur  secularibus  negotiis  :  (Co. 

Litt.  70.) — No  man  warring  for  God  should  be  troubled 
with  secular  business. 

483.  Nemo  nascitur  artifex  :    (Co.  Litt.  97.) — No  one  is  born 

an  artificer. 


LEGAL     MAXIMS.  263 

484.  Nemo  patriam  in  qua  natus  est  exuere  nee  .  ligeantige  cle- 

bitum  ejurare  possit :  (Co.  Litt.  129.) — A  man  cannot 
abjure  bis  native  country,  nor  the  allegiance  be  owes 
bis  sovereign :  (Maxim  53.) 

485.  Nemo  potest  contra  recordum  verificare  per  patriam :  (2 

Inst.  380.) — No  one  can  verify  by  jury  against  a  record. 

486.  Nemo  potest  esse  tenens  et  dominus  :  (Gilb.  Ten.  142.)  — 

No  man  can  be  tenant  and  lord. 

487.  Nemo  potest  facere  per  alium,  quod  per  se  non  potest : 

(Jenk.  237.) — No  man  can  do  tbrougb  another  what  be 
cannot  do  himself. 

488.  Nemo  potest  plus  juris  ad  alium  transferre  quam  ipse 

babet :  (Co.  Litt.  309.) — No  one  can  transfer  a  greater 
right  to  another  than  he  himself  has. 

489.  Nemo  praesumitur  alienam  posteritatem  suae  praetulisse  : 

(Wing.  285.) — No  one  is  presumed  to  have  preferred 
another's  posterity  to  his  own. 

490.  Nemo  praesumitur  esse  immemor  suae  aeternae  salutis,  et 

maxime  in  articulo  mortis  :  (6  Co.  76.) — No  one  is  pre- 
sumed to  be  forgetful  of  his  own  eternal  welfare,  and 
more  particularly  in  the  act  of  death. 

491.  Nemo  prohibetur  pluribus  defensionibus  uti :  (Co.  Litt. 

304.) — No  one  is  restrained  from  using  several  defenses. 

492.  Nemo  punitur  pro  alieno  delicto  :  (Wing.  336.) — No  one 

is  punished  for  the  crime  of  another. 

493.  Nemo  punitur  sine  injuria,  facto,  seu  defalto :  (2  Inst. 

287.) — No  one  is  punished  unless  for  some  injury,  deed, 
or  default. 

494.  Nemo  tenetur  ad  impossibile  :  (Jenk.  Cent.  7.) — No  one 

is  bound  to  an  impossibility. 

495.  Nemo  teneter  armare  adversarum  contra  se  :  (Wing,  665.) 

— No  one  is  bound  to  arm  his  adversary  against  himself. 

496.  Nemo  tenetur  divinare :  (4  Co.  28.) — No  one  is  bound  to 

foretell. 


264  LEGAL    MAXIMS. 

497.  Nemo  tenetur  seipsum  accusare  :  (Wing.  Max.  486.)  —No 

one  is  bound  to  criminate  himself :  (Maxim  54.) 

498.  Nihil  dat  qui  non  liabet :  (Jur.  Civ.) — He  gives  nothing 

who  has  nothing. 

499.  Nihil  facit  error  nominis  cum  de  corpore  constat :  (11  Co. 

21.) — An  error  of  name  is  nothing  when  there  is  cer- 
tainty as  to  the  person. 

500.  Nihil  infra  regnum  subditos  magis  conservat  in  tranquili- 

tate  et  concordia  quam  debita  legum  administratio  :  (^ 
Inst.  158.) — Nothing  more  preserves  in  tranquility  and 
concord  those  subjected  to  the  Government  than  a  due 
administration  of  the  laws. 

501.  Nihil  in  lege  intolerabilius  est,  eandem  rem  diverso  jure 

censeri :  (4  Co.  93.) — Nothing  in  law  is  more  intolerable 
than  to  rule  a  similar  case  by  a  diverse  law. 

502.  Nihil  quod  est  contra  rationem  est  licitum  :  (Co.  Litt.  97.) 

— Nothing  is  permitted  which  is  contrary  to  reason. 

503.  Nihil  quod  inconveniens  est  licitum  est :  (Co.  Litt.  97.) — 

Nothing  which  is  inconvenient  is  lawful. 

504.  Nihil  tam  conveniens  est  natural!  aequitati,  quam  unum- 

quodque  dissolvi  eo  ligamine  quo  ligatum  est :  (2  Inst. 
359.) — Nothing  is  so  agreeable  so  natural  equity  as  that, 
by  the  like  means  by  which  anything  is  bound,  it  may 
be  loosed  :  (Maxim  55.) 

505.  Nihil  tam  conveniens  est  naturali  aequitati,  quam  volun- 

tatem  domini  rem  suam  in  alium  transferre,  ratam 
habere :  (1  Co.  100.) — Nothing  is  so  consonant  to  nat- 
ural equity  as  to  regard  the  intention  of  the  owner  in 
transferring  his  own  property  to  another. 

506.  Nihil  tam  proprium  est  imperio  quam  legibus  vivere  :  (2 

Inst.  63.) — Nothing  is  so  proper  for  the  empire  as  to 
live  according  to  the  laws. 

507.  Nihil  habet  forum  ex  scena :  (Bac.  Max.) — The  court  has 

nothing  to  do  with  what  is  not  before  it. 


LEGAL    MAXIMS.  265 

508.  Nimia  subtilitas  in  jure  reprobatur,  et  talis  eertitudo  cer- 

titndinem  confundit :  (4  Co.  5.) — Nice  and  subtle  dis- 
tinctions are  not  sanctioned  by  the  law ;  for  so  apparent 
certainty  would  be  made  to  confound  true  and  legal 
certainty :  (Maxim  56.) 

509.  Nimium  alter-cando  Veritas  amittitur :  (Hob.   344.) — By 

too  mucb  altercation  truth  is  lost. 

510.  Xobiliores  et  benigniores  praesumptiones  in  dubiis  sunt 

prseferendae :  (Reg.  Jur.  Civ.) — In  cases  of  doubt,  the 
more  generous  and  more  benign  presumptions  are  to  be 
preferred. 

511.  Nobilitas  est  duplex,  superior  et  inferior  :  (2  Inst.  583.) 

— There  are  two  sorts  of  nobility,  the  higher  and  the 
lower. 

512.  Nomen  dicitur  a  noscendo,  quia  notitiam  facit :  (6  Co.  65.) 

— A  name  is  called  from  tlie  word  "  to  know,"  because 
it  makes  recognition. 

513.  Nomina  sunt  mutabilia,  res  autem  immobiles :  (6  Co.  66.} 

— Names  are  mutable,  but  things  immutable. 

514.  Non  alio  modo  puniatur  aliquis,  quam  secundum  quod  se 

habet  condemnatio :  (3  Inst.  217.) — A  person  may  not 
be  punished  differently  than  according  to  what  the  sen- 
tence enjoins. 

515.  Non  decipitur  qui  scit  se  decipi :  (5  Co.  60.) — He  is  not 

deceived  who  knows  himself  to  be  deceived. 

516.  Non  definitur  in  jure  quid  sit  conatus :  (6  Co.  42.) — What 

an  attempt  is,  is  not  defined  in  law. 

517.  Non  differunt  quse  concordant  re,  tametsi  non  in  verbis 

iisdem  :  (Jenk.  Cent.  70.) — Those  things  tliat  agree  in 
substance,  though  not  in  the  same  words,  do  not  differ. 

518.  Non  effecit  affectus  nisi  sequatur  effectus.     Sed  in  atro- 

cioribus  delictis  punitur  affectus,  licet  non  sequatur 
effectus  :  (2  Eol.  Rep.  89.)— The  intention  fullills  notli- 
ing  unless  an  effect  follow.     But  iu  the  deeper  delin- 


266  LEGAL    MAXIMS. 

quencies  the  intention  is  punished,  although  an  effect 
do  not  follow. 

519.  Non  est  arctius  vinculum  inter  homines  quam  jusjuran- 

dum  :  (Jenk.  Cent.  126.) — There  is  no  tighter  link  than 
an  oath,  among  mankind. 

520.  N^on  est  disputandum  contra  principia  negantem  :  (Co. 

Litt.  343.) — We  cannot  dispute  against  a  man  denying 
principles. 

521.  Kon  est  justum  aliquem  antenatum  post  mortem  facere 

bastardum  qui  toto  tempore  vitse  suae  pro  legitimo  ha- 
bebatur :  (Co.  Litt.  244.) — It  is  not  just  to  make  an 
elder  born  a  bastard  after  his  death,  who  during  his 
lifetime  was  accounted  legitimate. 

522.  Non  est  recedendum  a  communi  observantia:  (2  Co.  74.) 

— There  is  no  departing  from  common  observance. 

523.  Non  est  regula  quin  fallit :  (Plow.  Com.  162.) — There  is 

no  rule  but  what  may  fail. 

524.  ISTon  facias  malum  ut  inde  veniat  bonum  :  (11  Co.  74.) — 

You  are  not  to  do  evil  that  good  may  thence  arise, 

525.  ]^on  in  legendo  sed  in  intelligendo  leges  consistunt :  (8 

Co.  167.) — The  laws  consist  not  in  being  read,  but  in 
being  understood. 

526.  Non  jus,  sed  seisina,  facit  stipitem  :  (Fleta,  6,  c.  14.) — 

I^^ot  right,  but  seizin,  makes  the  stock :  (Maxim  57.) 

527.  IS'on  observata  forma  infertur  adnullatio  actus :  (5  Co. 

Eccl.  1.  98.) — When  form  is  not  observed,  a  failure  of 
■  the  action  ensues. 

528.  Kon  pertinet  ad  judicem  secularem  cognoscere  de  iis  quae 

sunt  mere  spiritualia  annexa :  (2  Inst.  488.) — It  belongs 
not  to  the  secular  judge  to  take  cognizance  of  things 
which  are  merely  spiritual. 

529.  ISTon  potest  adduci  exceptio  ejus  rei  cujus  petitur  dissolu- 

tio :  (Bac.  Max.  22.) — It  is  not  permitted  to  adduce  a 
plea  of  tlie  matter  in  issue  as  a  bar  thereto :  (Maxesi  58.) 


LEGAL     MAXIMS.  267 

530.  Non  refert  an  quis  assensum  suum  prsefert  verbis,  an  re- 

bus ipsis  et  factis  :  (10  Co.  52.) — It  matters  not  whether 
a  man  gives  his  assent  by  his  words,  or  by  his  acts  and 
deeds. 

531.  Non  refert  quid  notum  sit  judici,  si  notum  non  sit  in 

forma  judicii :  (3  Buls.  115.) — It  matters  not  what  is 
known  to  the  judge,  if  it  be  not  known  judicially. 

532.  Kon  refert  verbis  an  factis  fit  revocatio :  (Cro.  Car.  49.) 

— It  matters  not  whether  a  revocation  is  made  by  words 
or  by  deeds. 

533.  ]^on  valet  confirmatio,  nisi  ille  qui  confirmat  sit  in  pos- 

sessione  rei  vel  juris  unde  fieri  debet  confirmatio  :  et 
eodem  modo,  nisi  ille  cui  confirmatio  fit  sit  in  posses- 
sione  :  (Co.  Litt.  295.) — Confirmation  is  not  valid  unless 
he  who  confirms  is  either  in  possession  of  the  thing 
itself  or  of  the  right  of  which  confirmation  is  to  be 
made  ;  and,  in  like  manner,  unless  he  to  whom  confima- 
tion  is  made  is  in  possession. 

534.  l^oscitur  a  sociis :  (3  T.  E..  87.) — The  meaning  of  a  word 

may  be  ascertained  by  reference  to  those  associated  with 
it :  (Maxim  59.) 

535.  ISTova  constitutio  futuris  formam    imponere  debet,  non 

prseteritis :  (2  Inst.  292.) — A  new  law  ought  to  impose 
form  on  what  is  to  follow,  not  on  the  past :  (Maxim  60.) 

536.  Novitas  non  tarn  utilitate  prodest  quam  novitate  pertur- 

bat :  (Jenk.  Cent.  167.) — Novelty  benefits  not  so  much 
by  its^utility  as  it  disturbs  by  its  novelty. 

537.  Novum  judicium  non  dat  novum  jus,  sed  declarat  anti- 

quum ;  quia  judicium  est  juris  dictum,  et  per  judicium 
just  est  novitur  revelatum  quod  diu  fuit  velatum  :  (10 
Co.  42.) — A  new  adjudication  does  not  make  a  new  law, 
but  declares  the  old ;  because  adjudication  is  the  dictum 
of  law,  and  by  adjudication  the  law  is  newly  revealed 
which  was  previously  hidden. 

538.  Nudum  pactum  est  ubi  nulla  subest  causa  praeter  conven- 


268  LEGAL     MAXIMS. 

tionem ;  sed  ubi  subest  causa,  fit  obligatio,  et  parit  ac- 
tionem :  (Plow,  309.) — A  naked  contract  is  where  there 
is  no  consideration  to  support  the  agreement ;  but 
where  there  is  a  consideration,  an  obligation  exists,  and 
produces  an  action. 

539.  Nulla  curia  quae  reeordum  non  habet  potest  imponere 
finem,  neque  aliquem  mandare  carceri  ;  quia  ista  spectant 
tantummodo  ad  curias  de  recordo  :  (8  Co.  60.) — ISTo 
court  which  has  not  a  record  can  impose  a  fine,  or  com- 
mit any  person  to  prison  ;  because  those  powers  belong 
only  to  courts  of  record. 

640.  Nulla  impossibilia  aut  inhonesta  sunt  prsesumenda  ;  vera 
autem  et  honesta  et  possibilia  :  (Co.  Litt.  78.) — Impossi- 
bilities or  dishonesty  are  not  to  be  presumed ;  but  hon- 
esty, and  truth,  and  possibiKty. 

541.  Nul  prendra  advantage  de  son  tort  demesne  :  (2  Inst.  713.) 

— No  one  can  take  advantage  of  his  own  wrong. 

542.  Nullius  hominis  auctoritas  ajjud  nos  valere  debet,  ut  me- 

liora  non  sequeremur  si  quis  attulerit :  (Co.  Litt.  383.) — 
The  authority  of  no  man  ought  to  prevail  with  us,  so 
that  we  should  not  adopt  better  things,  if  another  bring 
them. 

543.  Nullum  crimen  majus  est  inobedientia  :  (Jenk.  Cent.  77.) 

— No  crime  is  greater  than  disobedience. 

544.  Nullum  exemplum  est  idem  omnibus  :  (Co.  Litt.  212.) — 

No  example  is  the  same  to  all. 

545.  Nullum  iniquum  est  praesumendum  in  jure  :  (7  Co.  71.) — 

No  iniquity  is  to  be  presumed  in  law. 

546.  Nullum  simile  est  idem,  quatuor  pedibus  currit :  (Co.  Litt. 

3.) — No  simile  is  the  same,  and  runs  on  four  feet. 

547.  Nullum  tempus  aut  locus  occurrit  regi :  (2  Inst.  273.) — 

No  time  runs  against,  or  place  affects,  the  king :  (Maxim 
61.) 


LEGAL     MAXIMS.  269 

548.  Nullus  alius  quam  rex  possit  episcopo  demandare  inqui- 

sitionem  faciendam  :  (Co.  Litt.  134.) — ISTo  otlier  than  the 
king  can  command  the  bishop  to  make  an  inquisition. 

549.  KuUus  commodum  capere  potest  de  injuria  sua  propria : 

(Co.  Litt.  148.) — No  one  can  take  advantage  of  his  own 
wrong :  (Maxem  62.) 

550.  Nullus  dicitur  accessorius  post  feloniam  sed  ille  qui  novit 

principalem  feloniam  fecisse,  et  ilium  receptavit  et  com- 
fortavit :  (3  Inst.  138.) — Ko  one  is  called  an  accessory 
after  the  fact  but  he  who  knew  the  principal  to  have 
committed  a  felony,  and  received  and  comforted  him. 

551.  Nullus  dicitur  felo  principalis  nisi  actor,  aut  qui  prsesens 

est  abettans  aut  auxilians  ad  feloniam  faciendam  :  (3 
Inst.  138.) — No  one  shall  be  called  a  principal  felon  ex- 
cept the  party  actually  committing  the  felony,  or  the 
party  present  aiding  and  abetting  in  its  commission. 

552.  Nullus  recedat  e  curia  cancellaria  sine  remedio  :  (4  H.  7, 

4.) — Let  no  one  depart  from  the  Court  of  Chancery 
without  a  remedy. 

553.  Nunquam  res  humanae  prospere  succedunt  ubi  negligun- 

tur  divinse  :  (Co.  Litt.  95.) — Human  things  never  pros- 
per where  divine  things  are  neglected. 

554.  Nuptias  non  concubitas  sed  consensus  facit :  (Co.  Litt. 

33.) — Not  cohabitation  but  consent  makes  marriage. 

655.  Obtempeeandum  est  consuetudini  rationabili  tanquam  legi : 
(4  Co.  38.) — A  reasonable  custom  is  to  be  obeyed  like 
law. 

556.  Occultatio  thesauri  invent!  fradulosa :  (3  Inst.  133.) — The 

concealment  of  discovered  treasure  is  fraudulent. 

557.  Officia  magistratus  non  debent  esse  venalia :  (Co.  Litt. 

234.) — The  offices  of  magistrates  ought  not  to  be  sold. 

558.  Officit  conatus  si  effectus  sequatur :  (Jenk.  Cent.  55.) — 

The  attempt  becomes  of  consequence  if  the  effect  fol- 
lows. 


270  LEGAL    MAXIMS. 

559.  Omne  crimen  ebrietas  et  incendit  et  detegit :    (Co.  Litt. 

247.) — Drunkenness  botli  lights  up  and  produces  every 
crime. 

560.  Omne  majus  continet  in  se  minus :    (5  Co.  115.) — The 

greater  contains  the  less  :  (Maxim  63.) 

561.  Omne  sacramentum  debet  esse  de  certa  scientia  :   (4  Inst. 

279.) — Every  oath  ought  to  be  of  certain  knowledge. 

562.  Omnes  sorores  sunt    quasi  unus  hseres  de  una   haeredi- 

tate :  (Co.  Litt.  67.) — All  sisters  are  as  it  were  one  heir 
to  one  inheritance. 

563.  Omnes  subditi  sunt  regis  servi :    (Jenk.  Cent.  126.) — All 

subjects  are  the  king's  servants. 

564.  Omne  testamentum  morte  consummatum  est :  (3  Co.  29.) 

—Every  will  is  completed  by  death. 

565.  Omnia  delicta  in  aperto  leviora  sunt :    (8  Co.  127.) — All 

crimes  done  openly  are  lighter. 

566.  Omnia  pragsumuntur  contra  spoliatorem  :    (Branch.  Max. 

80.) — All  tilings  are  presumed  against  a  wrong-doer : 
(Maxim  64.) 

567.  Omnia  prsesumuntur  legitime  facta  donee  probetur  in 

contrarium  :  (Co.  Litt.  232.) — All  things  are  presumed 
legitimately  done,  until  the  contrary  be  proved. 

568.  Omnia  prsesumuntur  rite  et  solenniter  esse  acta :    (Co. 

Litt.  6.) — All  things  are  presumed  to  be  correctly  and 
solemnly  done  :  (Maxim  65.) 

569.  Omnia  quae  sunt  uxoris  sunt  ipsius  viri ;  non  habet  uxor 

potestatem  sui,  sed  vir :  (Co.  Litt.  112.) — All  things 
which  belong  to  the  wife  belong  to  the  husband  ;  the 
wife  has  no  power  of  her  own,  the  husband  has  it  all. 

570.  Omnis  actio  est  loquela  :  (Co.  Litt.  292.) — Every  action  is 

a  complaint. 

571.  Omnis  conclusio  boni  et  veri  judicii  sequitur  ex  bonis  et 

veris  praemissis  et  dictis  juratorum  :    (Co.  Litt.  226.) — 


LEGAL    MAXIMS.  271 

Every  conclusion  of  a  good  and  true  judgment  arises 
from  good  and  true  premises,  and  sayings  of  juries. 

572.  Omnis  innovatio  plus  novitate  perturbat  quam  utilitate 

prodest :  (2  Buls.  338.) — Every  innovation  disturbs 
more  by  its  novelty  than  benefits  by  its  utility :  (Max- 
im 66.) 

573.  Omnis  interpretatio,  si  fieri  potest,  ita  fienda  est  instru- 

mentis,  ut  omnes  contrarietates  amoveantur :  (Jenk. 
Cent.  96.) — Every  interpretation,  if  it  can  be  done,  is 
to  be  so  made  in  instruments  as  that  all  contradictions 
may  be  removed. 

574.  Omnis  nova  constitutio  futuris  temporibus  formam  im- 

ponere  debet,  non  praeteritis  :  (2  Inst.  95.) — Every  new 
institution  should  give  a  form  to  future  times,  not  to 
past. 

575.  Omnis  privatio  prsssupponit  habitum  :   (Co.  Litt.  339.) — 

Every  privation  presupposes  former  enjoyment. 

576.  Omnis  querela  et  omnis  actio  injuriarum  limitata  est  in- 

fra certa  tempora  :  (Co.  Litt.  114.) — Every  plaint  and 
every  action  for  injuries  is  limited  within  certain 
times. 

577.  Omnis  ratihabitio  retrotrahitur,  et  mandato  priori  cequi- 

paratur:  (Co.  Litt.  207.) — Every  ratification  of  an  act 
already  done  has  a  retrospective  effect,  and  is  equal  to 
a  previous  request  to  do  it :  (Maxim  67.) 

578.  Omnium   rerum   quarum   usus   est,  potest   esse   abusus, 

virtute  sola  excepta :  (Dav.  79.) — There  may  be  an 
abuse  of  everything  of  which  there  is  a  use,  virtue 
alone  excepted. 

579.  Oportet  quod  certa  res  deducatur   in  judicium  :  (Jenk. 

Cent.  84.) — A  thing  certain  must  be  brought  to  judg 
ment. 

580.  Optima  est  lex  quae  minimum  relinquit  arbitrio  judicis  : 

optimus  judex  qui  minimum  sibi :    (Bac.  Aphor.  46.) — 


272  LEGAL    MAXIMS. 

That  system  of  law  is  best  which  confides  as  little  as 
possible  to  the  discretion  of  a  judge ;  that  judge  the 
best  who  trusts  as  little  as  possible  to  his  own  judg- 
ment, 

581.  Optima  statuti  interpretatrix  est  (omnibus  particulis  ejus- 

dem  inspectis)  ipsum  statutum  :  (8  Co.  117.) — The  best 
interpreter  of  a  statute  is  (all  the  separate  parts  being 
considered)  the  statute  itself. 

582.  Optima  legum  interpres  est  consuetudo  :    (Plow.  Com. 

336.) — Custom  is  the  best  interpreter  of  the  law. 

583.  Optimus  interpres  rerum  usus  :   (2  Inst.  282.) — The  best 

interpreter  of  things  is  usage  :  (Maxim  68.) 

584.  Optimus  interpretandi  modus  est  sic  leges  interpretare  ut 

leges  legibus  concordant :  (8  Co.  169.) — The  best  mode 
of  interpretation  is  so  to  interpret  that  the  laws  maj 
accord  with  the  laws. 

585.  Origo  rei  inspici  debet :    (1   Co.  99.) — The  origin  of  a 

thing  ought  to  be  inquired  into. 

586.  Pacta  privata  juri  publico  derogare  non  possunt :  (7  Co. 

23.) — Private  contracts  cannot  derogate  from  public 
right. 

587.  Parens  est  nomen  generale  ad  omne  genus  cognationis  : 

(Co.  Litt.  80.) — Parent  is  a  name  general  to  every  kind 
of  relationship. 

588.  Paribus  sententiis  reus  absolvitur :  (4  Inst.  64.) — Where 

opinions  are  equal,  a  defendant  is  acquitted. 

589.  Par  in  parem  imperium  non  habet :  (Jenk.  Cent.  174.) — 

An  equal  has  no  power  over  an  equal. 

590.  Parochia  est  locus  quo  degit  populus  alicujus  ecclesise  : 

(5  Co.  67.) — A  parish  is  a  place  in  which  the  population 
of  a  certain  church  resides. 

591.  Partem  aliquam  recte  intelligere  nemo  potest,  antequam 

totum  iterum  atque  iterum  perlegerit:   (3  Co.  59.) — 


LEGAL    MAXIMS.  273 

No  one  can  rightly  understand  any  part  until  lie  has 
read  the  whole  again  and  again. 

592.  Participes  plures  sunt  quasi  unum  corpus,  in  eo  quod 

unum  jus  habent,  et  oportet  quod  corpus  sit  integrum 
et  quod  in  nulla  parte  sit  defectus  :  (Co.  Litt.  164.) — 
Many  partners  are  as  one  body,  inasmuch  as  they  have 
one  right,  and  it  is  necessary  that  the  body  be  perfect, 
and  that  there  be  defect  in  no  part. 

593.  Participes,   quasi  partis  capaces,   sive  partem  capientes, 

quia  res  inter  eas  est  communis,  ratione  plurium  per- 
sonarum :  (Co.  Litt.  146.) — Partners  are  as  it  were  "  par- 
tis capaces,"  or  "  partem  capientes,"  because  the  thing 
.  is  common  to  them,  by  reason  of  their  being  many 
persons. 

594.  Partus  sequitur  ventrem  :  (2  Bl.  Com.) — The  offspring 

follows  the  dam. 

595.  Parum  est  latum  esse  sententiam  nisi  mandetur  execu- 

tioni :  (Co.  Litt.  289.) — It  is  not  enough  that  sentence 
be  given  unless  it  be  carried  to  execution. 

596.  Parum  proficit  scire  quid  fieri  debet  si  non  cognoscas 

quomodo  sit  facturum  :  (2  Inst.  503.) — It  avails  little  to 
know  what  ought  to  be  done  if  you  do  not  know  how  it 
is  to  be  done. 

597.  Pater  est  quem  nuptae  demonstrant :  (Co.  Litt.  123.) — He 

is  the  father  whom  the  nuptials  indicate. 

598.  Patria  laboribus  et  expensis  non  debet  fatigari :  (Jenk. 

.  Cent.  6.) — A  jury  ought  not  to  be  fatigued  by  labors 
and  expenses. 

599.  Peccata  contra  naturam  sunt  gravissima :  (3  Inst.  20.) — 

Crimes  against  nature  are  the  most  heinous. 

600.  Peccatum  peccato  add  it  qui  culpas  quam  facit  patrocinium 

defensionis  adjungit :  (5  Co.  49.) — He  adds  one  offense 
to  another  who,  when  he  commits  an  offense,  joins  the 
protection  of  a  defense. 
18 


274  LEGAL     MAXIMS. 

601.  Pecunia  dicitur  a  pecus,  omnes  enim  veterum  divitise  in 

animalibus  consistebant :  (Co.  Litt.  207.) — Money  (pe- 
cunia) is  so  called  from  cattle  (pecus),  because  the  wealth 
of  our  ancestors  consisted  in  cattle. 

602.  Pendente  lite  nihil  innovetur  :  (Co.  Litt.  3M.) — During  a 

litigation  notliing  new  should  be  introduced. 

603.  Periculum  rei  venditse,  nondum  traditse,  est  emptoris. — 

The  risk  of  a  thing  sold,  and  not  yet  delivered,  is  the 
purchaser's. 

604.  Perpetua  lex  est,  nullam  legem  humanam  ac  positivam 

perpetuam  esse,  et  clausula  quae  abrogationem  excludit, 
ab  initio  non  valet :  (Bac.  Max.  Reg.  19.) — It  is  an 
everlasting  law,  that  no  positive  and  human  law  shall 
be  perpetual,  and  a  clause  which  excludes  abrogation  is 
not  good  from  its  commencement. 

605.  Persona  conjuncta  aequiparatur  interesse  proprio :  (Bac. 

Max.  18.) — A  personal  connection  equals,  in  law,  a  man's 
own  proper  interest :  (Maxim  69.) 

606.  Plures  cohseredes  sunt  quasi  unum  corpus,  propter  uni- 

tatem  juris  quod  habent :  (Co.  Litt.  163.) — Several  co- 
heirs are,  as  it  were,  one  body,  by  reason  of  the  unity  of 
right  which  they  possess.  • 

607.  Plures  participes  sunt  quasi  unum  corpus,  in  eo  quod 

unum  jus  habent :  (Co.  Litt.  164.) — Several  partners  are 
as  one  body,  in  that  they  have  one  right. 

608.  Plus  valet  unus  oculatus  testis  quam  auriti  decem :  (4 

Inst.  279.) — One  eye  witness  is  better  than  ten  ear  wit- 
nesses. 

609.  Plus  valet  vulgaris   consuetudo  quam  regalis  concessio  : 

(Co.  Cop.  §,  31.) — Common  custom  is  better  than  royal 
grant. 

610.  Poena  ex  delicto  defuncti,  liceres  teneri  non  debet:   (2 

Inst.  198.) — The  heir  ought  not  to  be  bound  in  a  penalty 
for  the  crime  of  the  defunct. 


LEGAL    MAXIMS.  275 

<611.  PolitiaB  legibus  non  leges  politiis  adaptandse  :  (Hob.  154.) 
— Politics  are  to  be  adapted  to  the  laws,  and  not  the 
laws  to  jiolitics. 

612.  Polygamia  est  plurium  simul  virorum  uxorumve  connu- 

bium  :  (3  Inst.  88.) — Polygamy  is  the  marriage  of  many 
husbands  or  wives  at  one  time. 

613.  Possessio  est  qnasi  pedis  positio :  (3  Co.  42.) — Possession 

is,  as  it  were,  the  position  of  the  foot. 

614.  Praescriptio  est  titulus  ex  usu  et  tempore  substantiam 

capiens  ab  auctoritate  legis :  (Co.  Litt.  113.) — Prescrip- 
tion is  a  title  by  authority  of  law,  deriving  its  force 
from  use  and  time. 

615.  Prsesentia  corporis   tollit   errorem   nominis:    et   Veritas 

nominis  tollit  errorem  demonstrationis :  (Bac.  Max.  Reg. 
25.) — The  presence  of  the  body  cures  error  in  the  name : 
the  truth  of  the  name  cures  error  of  description. 

616.  Prsesumptio  violenta  valet  in  lege  :    (Jenk.  Cent.  56.) — 

Strong  presumption  avails  in  law. 

617.  Praxis   judicum   est  interpres  legum :    (Hob.   96.) — The 

practice  of  the  judges  is  the  interpreter  of  the  laws. 

618.  Primo  excutienda  est  verbi  vis,  ne   sermonis  vitio   ob- 

structur  oratio,  sive  lex  sine  argumentis  :  (Co.  Litt.  68.) 
— The  force  of  a  word  is  to  be  especially  examined^  lest 
by  the  fault  of  the  words  the  sentence  is  destroyed,  or 
the  law  be  without  argument. 


'to' 


619.  Principiorum  non  est  ratio  :  (2  Buls.  239.) — Of  principles 

there  is  no  rule. 

620.  Privatum  commodum  publico  cedit :  (Jenk.  Cent.  223.) — 

Private  good  yields  to  public. 

621.  Privatum  incommodum   publico   bono   pensatur :    Jenk. 

Cent.  85.) — Private  loss  is  compensated  by  public  good. 

622.  Privilegium  non  valet  contra  rcmpublicam  :  (Bac.  Max. 

25.) — A  privilege  avails  not  against  public  good. 


276  LEGAL     MAXIMS. 

623.  Protectio  traliit  subjectionem,  et  subjectio  protectionem  : 

(Co.  Litt.  65.) — Protection  begets  subjection,  subjection 
protection. 

624.  Qu^  ad  unum  finem  loquuta  sunt,  non  debent  ad  alium 

detorqueri :  (4  Co.  14.) — Those  tilings  which  are  spoken 
to  one  end,  ought  not  to  be  perverted  to  another. 

625.  Quae  communi  legi  derogant  stricte  interpretantur :  (Jenk. 

Cent.  221.) — Things  derogating  from  the  common  law 
are  to  be  strictly  interpreted. 

626.  Quffi  contra  rationem  juris  introducta  sunt,  non  debent 

trahi  in  consequentiam :  (12  Co.  75.) — Things  intro- 
duced contrary  to  the  reason  of  law,  ought  not  to  be 
drawn  into  a  precedent. 

627.  Qugelibet  concessio  fortissime  contra  donatorem  interpre- 

tanda  est:  (Co.  Litt.  183.) — Every  grant  is  to  be  most 
strongly  taken  against  the  grantor. 

628.  Quae  mala  sunt  inchoata  in  principio  vix  bono  peragantur 

exitu :  (4  Co.  2.) — Things  bad  in  the  commencement 
seldom  achieve  a  good  end. 

629.  Qu^  non  valeant  singula,  juncta  juvant :  (3  Buls.  132.) — 

Things  which  do  not  avail  separate  avail  joined. 

630.  Quam  longum  debet  esse  rationabile  tempus,  non  definitur 

in  lege,  sed  pendet  ex  discretione  justiciariorum :  (Co. 
Litt.  56.) — How  long  reasonable  time  ought  to  be,  is  not 
defined  by  law,  but  depends  upon  the  discretion  of  the 
judges. 

631.  Quando  aliquid  mandatur,  mandatur  et  omne  per  quod 

pervenitur  ad  illud :  (5  Co.  116.) — When  anything  is 
commanded,  everything  by  which  it  can  be  accom- 
plished is  also  commanded, 

632.  Quando  aliquid  prohibetur  ex  directo,  prohibetur  et  per 

obliquum :  (Co.  Litt.  223.) — "When  anything  is  prohib- 
ited directly,  it  is  also  prohibited  indirectly. 

633.  Quando  aliquid  prohibetur,  prohibetur  omne  per  quod 


LEGAL     MAXIMS.  277 

devenitur  ad  illud  :  (2  Inst.  48.) — When  anything  is 
prohibited,  everything  relating  to  it  is  prohibited. 

634.  Quando  duo  jura  in  uno  concurrunt,  aequum  est  ac  si  essent 

in  duobus :  (Plow.  Com.  168.) — When  two  rights  concur 
in  one  person  it  is  the  same  as  if  they  were  in  two. 

635.  Quando  jus  domini  regis  et  subditi  concurrunt,  jus  regis 

prseferri  debet :  (9  Co.  129.) — When  the  rights  of  the 
king  and  of  the  subject  concur,  those  of  the  king  are 
to  be  preferred  :  (Maxim  70.) 

-636.  Quando  lex  aliquid  alicui  concedit,  concedere  videtur  id 
sine  quo  res  ipsa  esse  non  potest :  (5  Co.  47). — When 
the  law  gives  anything  to  any  one,  it  gives  also  all  those 
things  without  which  the  thing  itself  would  be  unavail- 
able :  (Maxim  71.) 

^637.  Quando  mulier  nobilis  nupserit  ignobili,  desinit  esse  no- 
bilem  nisi  nobilitas  natu  fuit :  (4  Co.  118.) — When  a 
noble  woman  marries  a  man  not  noble,  she  ceases  to  be 
noble,  unless  her  nobility  was  born  with  her. 

638.  Quando  plus  fit  quam  fieri  debet,  videtur  etiam  illud  fieri 

quod  faciendum  est :  (8  Co.  85.) — When  more  is  done 
than  ought  to  be  done,  then  that  is  considered  to  have 
been  done  which  ought  to  have  been  done  :  (Maxim  72.) 

639.  Quando  verba  statuti  sunt  specialia,  ratio  autem  generalis, 

generaliter  statutum  est  intelligendum  :  (10  Co.  101.) — • 
When  the  words  of  a  statute  are  special,  but  the  reason 
general,  the  statute  is  to  be  understood  generally. 

640.  Qui  accusat  integrse  f am£e  sit,  et  non  criminosus  :  (3  Inst. 

26.) — Let  him  who  accuses  be  of  clear  fame,  and  not 
criminal. 

641.  Qui  aliquid  statuerit  parte  inaudita  altera,  sequum  licet 

dixerit,  baud  sequum  facerit :  (G  Co.  52.) — He  who  de- 
cides anything,  one  party  being  unheard,  though  he  de- 
cide rightly,  does  wrong. 

642.  Qui  concedit  aliquid  concedere  videtur  et  id  sine  quo 

concessio  est  irrita,  sine  quo  res  ipsa  esse  non  potuit : 


278  LEGAL    MAXIMS. 

(11  Co.  52.) — He  who  concedes  anything  is  considered 
as  conceding  that  without  which  his  concession  would 
be  idle,  without  which  the  thing  itseK  could  not  exist. 

643.  Quicquid  plantatur  solo,  solo  cedit :  (Went.  Off.  of  Exec. 

58.) — Whatever  is  affixed  to  the  soil  belongs  to  the  soil : 
(Maxim  73.) 

G44.  Quicquid  solvitur,  solvitur  secundum  modum  solventis  : 
quicquid  recipitur,  recipitur  secundum  modu  recipi- 
entis  :  (2  Vern.  606.) — Whatever  is  paid,  is  paid  accord- 
ing to  the  intention  or  manner  of  the  party  paying* 
whatever  is  received,  is  received  according  to  the  inten- 
tion or  manner  of  the  party  receiving  :  (Maxim  74.) 

645.  Quid  sit  jus  et  in  quo  consistit  injuria,  legis  est  definire : 

(Co.  Litt.  158.) — What  right  is,  and  in  what  consists  in- 
jury, is  the  business  of  the  law  to  declare. 

646.  Qui  facit  per  alium  facit  per  se  :    (Co.  Litt.  258.) — Ha 

who  does  anything  by  another  does  it  by  himself : 
(Maxim  75.) 

647.  Qui  hseret  in  litera  hseret  in  cortice  :  (Co.  Litt.  289.) — He 

who  sticks  to  the  letter  sticks  to  the  bark  ;  or,  he  who 
considers  the  letter  merely  of  an  instrument  cannot 
comprehend  its  meaning  :  (Maxim  76.) 

648.  Qui  in  utero  est,  pro  jam  nato  habetur,  quoties  de  ejus 

commodo  quseritur  :  (2  Bla.  Com.) — He  who  is  in  the 
womb  is  now  held  as  born,  as  often  as  it  is  questioned 
concerning  his  benefit. 

649.  Qui  jussu  judicis  aliquod  fecerit  non  videtur  dolo  malo 

fecisse,  quia  parere  necesse  est :  (10  Co.  76.) — He  who 
does  anything  by  command  of  a  judge  will  not  be  sup- 
posed to  have  acted  from  an  improper  motive  ;  because 
it  was  necessary  to  obey  :  (Maxim  77.) 

650.  Quilibet  potest  renunciare  juri  pro  se  introducto  :  (2  Inst. 

183.) — ^Every  man  is  able  to  renounce  a  right  intro- 
duced for  himself :  (Maxim  78.) 


LEGAL    MAXIMS.  2Y9 

651.  Qui  non  cadunt  in  constantem  virum  vani  timores  sunt 

sestimandi :  (7  Co.  27.) — Those  fears  are  to  be  esteemed 
vain  wliich  do  not  affect  a  firm  man. 

652.  Qui  non  liabet  in  sere,  luat  in  corpore  ;  ne  quis  peccetur 

impune  :  (2  Inst.  173.) — What  a  man  cannot  pay  with 
his  purse,  he  must  suffer  in  person,  lest  any  one  should 
offend  with  impunity. 

653.  Qui  non  liabet  potestatem  alienandi  habet  necessitatem 

retinendi :  (Hob.  336.) — He  who  has  no  power  of  alien- 
ation must  retain. 

654.  Qui  non  obstat  quod  obstare  potest  facere  videtur :  (2 

Inst.  146.) — He  who  does  not  prevent  what  he  can  pre- 
vent, seems  to  do  the  thing. 

655.  Qui  non  improbat,  approbat :  (3  Inst.  27.) — He  who  does 

not  blame,  approves. 

656.  Qui  peccat  ebrius,  luat  sobrius  :  (Gary's  Rep.  133.) — Let 

him  who  sins  when  drunk,  be  punished  when  sober. 

657.  Qui  per  alium  facit,  per  seipsum  facere  videtur :  (Co.  Litt. 

258.) — He  who  by  another  does  anything,  is  himself 
considered  to  have  done  it. 

658.  Qui  per  fraudem  agit,  frustra  agit :  (2  Rol.  Rep.  17.) — 

"What  a  man  does  fraudulently,  he  does  in  vain. 

659.  Qui  prior  est  tempore  potior  est  jure  :  (Co.  Litt.  14.) — 

He  who  is  first  in  time  hag  the  strongest  claim  in 
law :  (Maxim  79.) 

660.  Qui  sentit  commodum  sentire  debet  et  onus ;  et  e  contra : 

(1  Co.  99.) — He  who  enjoys  the  benefit  ought  also  to 
bear  the  burden  ;  and  the  contrary  :  (Maxim  80.) 

661.  Qui  tacet  eonsentire  videtur  :  (Jenk.  Cent.  32.) — He  who 

is  silent  appears  to  consent. 

662.  Qui  tacet  eonsentire  videtur,  ubi  tractatur  de  ejus  com- 

mode :  (9  Mod.  38.) — He  who  is  silent  is  considered  as 
consenting,  when  it  is  debated  conceniing  his  con- 
venience. 


280  LEGAL     MAXIMS. 

663.  Quod  ab  initio  non  valet,  in  tractu  temporis  non  con- 

valescit :  (4  Co.  2.) — That  whicli  is  bad  from  the  be- 
ginning does  not  improve  by  length  of  time :  (Maxim 
81.) 

664.  Quod  constat  curise  opere  testium  non  indiget :  (2  Inst. 

662.) — What  appears  to  the  court  needs  not  the  help  of 
witnesses. 

665.  Quodcunque  aliquis  ad  tutelam  corporis  sui  fecerit,  jure 

id  f ecisse  videtur :  (2  Inst.  590.) — ^Whatever  any  one 
does  in  defense  of  his  person,  that  he  is  considered  to 
have  done  legally. 

666.  Quod  dubitas,  ne  feceris :  (P.  C.  300.) — Where  you  doubt 

do  nothing. 

667.  Quod  est  ex  necessitate  nunquam  introducitur  nisi  quan- 

do  necessarium  :  (2  Kol.  Eep.  512.) — What  is  introduced 
of  necessity,  is  never  introduced  except  when  necessary. 

668.  Quod  est  inconveniens,  aut  contra  rationem,  non  permis- 

sum  est  in  lege  :  (Co.  Litt.  1Y8.) — What  is  inconvenient, 
or  contrary  to  reason,  is  not  permitted  in  law. 

669.  Quod  in  minori  valet  valebit  in  majori ;  et  quod  in  majori 

non  valet  nee  valebit  in  minori :  (Co.  Litt.  260.) — What 
avails  in  the  minor  will  avail  in  the  major ;  and  what 
does  not  avail  in  the  major  will  not  avail  in  the  minor. 

670.  Quod  necessarie  intelligitur  id  non  deest :  (1  Buls.  71.) — 

What  is  necessarily  understood  is  not  wanting. 

671.  Quod  necessitas  cogit,  defendit :  (H.  H.  P.  C.  54.) — What 

necessity  forces,  it  justifies. 

672.  Quod  non  apparet  non  est ;  et  non  apparet  judicialiter 

ante  judicium :  (2  Inst.  479.) — That  which  appears  not 
is  not,  and  appears  not  judicially  before  judgment. 

673.  Quod  non  habet  principium  non  habet  finem  :  (Co.  Litt. 

345.) — That  which  has  no  beginning  has  no  end. 

674.  Quod  non  legitur  non  creditur :  (4  Inst.  304.) — What  is 

not  read  is  not  believed. 


LEGAL     MAXIMS.  281 

675.  Quod  nostrum  est,  sine  facto  sive  defectu  nostro,  amitti 

sen  in  alium  transferri  non  potest :  (8  Co.  92.) — That 
whicii  is  onrs  cannot  be  lost  or  transferred  to  another 
without  our  own  act,  or  our  own  fault. 

676.  Quod  nullius  est,  est  domini  regis  :  (Fleta,  1,  3.) — That 

which  is  the  property  of  nobody,  belongs  to  our  lord  the 
king. 

677.  Quod  per  me  non  possum,  nee  per  alium :  (4  Co.  24.) — 

What  I  cannot  do  in  person,  I  cannot  do  by  proxy. 

678.  Quod  prius  est  verius  est ;  et  quod  prius  est  tempore  po- 

tius  est  jure  :  (Co.  Litt.  347.) — What  is  first  is  true,  and 
what  is  first  in  time  is  better  in  law. 

679.  Quod  remedio  destuitur  ipsa  re  valit  si  culpa  absit :  (Bac. 

Max.  Keg.  9.) — That  which  is  without  remedy  avails  of 
itself  if  without  fault :  (Maxim  82.) 

680.  Quod  semel  placuit  in  electione,  amplius  displicere  non 

potest :  (Co.  Litt.  146.) — Where  choice  is  once  made  it 
cannot  be  disapproved  any  longer. 

681.  Quod  vanum  et  inutile  est,  lex  non  requirit :  (Co.  Litt. 

319.) — The  law  requires  not  what  is  vain  and  useless. 

682.  Quo  ligatur,  eo  dissolvitur :    (2  Eol.  Kep.   21.) — By  the 

same  power  by  which  a  man  is  bound,  by  that  he  is 
loosed. 

683.  Quomodo  quid    constituitur,  eodem    modo    dissolvitur : 

(Jenk.  Cent.  74.) — In  the  same  manner  by  which  any- 
thing is  constituted,  by  that  it  is  dissolved. 

684.  Quoties  in  verbis  nulla  est  ambiguitas,  ibi  nulla  cxpositio 

contra  verba  expressa  fienda  est :  (Co.  Litt.  147.) — 
When  in  the  words  there  is  no  ambiguity,  then  no  ex- 
position contrary  to  the  expressed  words  is  to  be  made : 
(Maxim  83.) 

685.  Ratio  est  legis  anima ;  mutata  legis  rationc  mutatur  et  lex  : 

(7  Co.  7.) — Reason  is  the  soul  of  law ;  tlie  reason  of  law 
being  changed,  the  law  is  also  changed. 


282  LEGAL     MAXIMS. 

686.  Eatio  legis  est  anima  legis  :  (Jcnk.  Cent.  45.) — The  rea- 

son of  law  is  the  soul  of  law. 

687.  Eegnum  non  est  divisibile :    (Co.  Litt.  1G5.) — The  king- 

dom is  not  divisible. 

688.  Eelatiyonim,  cognito  uno,  eognoseitur  et  alterum :  (Cro. 

Jac.  539.) — Of  things  relating  to  each  other,  one  being 
known,  the  other  is  also  known. 

689.  Kepellitur  a  sacramento  infamis  :    (Co.  Litt.   158.) — The 

oath  of  an  infamous  person  is  not  to  be  received. 

690.  Eeprobata  pecunia  liberat  solventem  :  (9  Co.  79.) — Money- 

refused  frees  the  debtor. 

691.  Eerum  ordo  confunditur,  si  unicuique  jurisdictio  non  ser- 

vetur :  (4  Inst.  Proem.) — The  order  of  things  is  con- 
founded if  every  one  keeps  not  within  his  jurisdiction. 

692.  Eerum  progressus  ostendunt  multa,   quge  in  initio  prae- 

caveri  seu  praevideri  non  possunt :  (6  Co.  40.) — The 
progresses  of  time  show  many  things  which  at  the  be- 
ginning could  not  be  guarded  against  or  foreseen. 

693.  Eerum  suarum  quilibet  est  moderator  et  arbiter :    (Co. 

Litt.  223.) — Every  one  is  the  moderator  and  arbiter  of 
his  own  affairs. 

694.  Eescriptum  principis  contra  jus  non  valet :    (Eeg.  Civ. 

Jur.) — The  prince's  rescript  avails  not  against  right. 

695.  Eesignatio  est  juris  proprii  spontanea  refutatio :    (Godb. 

284.) — Eesignation  is  a  spontaneous  relinquishment  of 
one's  own  right. 

696.  Ees  inter  alios  acta  alteri  nocere  non  debet :    (Co.  Litt. 

132.) — One  person  ought  not  to  be  injured  by  the  acts 
of  others  to  which  he  is  a  stranger  :  (Maxlm  84.) 

697.  Ees  judicata  pro  veritate  accipitur :    (Co.  Litt.  103.) — A 

thing  adjudicated  is  received  as  true. 

698.  Ees  per  pecuniam  sestimantur,  et  non  pecunia  per  res  :  (9 

Co.  76.) — The  value  of  a  thing  is  estimated  according  to 


LEGAL     MAXIMS.  283 

its  worth  in  money ;  but  the  value  of  money  is  not  esti- 
mated by  reference  to  the  thing. 

699.  Respiciendum  est  judicanti,  ne  quid  ant  durius  aut  remis- 

sius  constituatur  quam  causa  deposcit ;  nee  enim  aut 
severitatis  aut  clementisB  gloria  affectanda  est :  (3  Inst. 
220.) — It  is  a  matter  of  import  to  one  adjudicating  that 
nothing  either  more  lenient  or  more  severe  than  the 
cause  itself  warrants  should  be  done,  and  that  the  glory 
neither  of  severity  nor  clemency  should  be  affected. 

700.  Respondeat  superior :    (4  Inst.  11-1.) — Let  the  principal 

answer :  (Maxim  85.) 

701.  Eeus  Ises^e  majestatis  punitur,  ut  pereat  unus  ne  pereant 

omnes  :  (4  Co.  124.) — A  traitor  is  punished  that  one 
and  not  all  may  perish. 

702.  Eeversio  terr^  est  tanquam  terra  revertens  in  possessione 

donatori  sive  hseredibus  suis  post  donum  finitum  :  (Co. 
Litt.  142.) — A  reversion  of  land  is  as  it  were  the  return 
of  the  land  to  the  possession  of  the  donor  or  his  heirs 
after  the  termination  of  the  estate  granted. 

703.  Re,  verbis,  scripto,  consensu,  traditione,  junctura  vestes 

sumere  pacta  solent :  (Plow.  Com.  161.) — Compacts  are 
accustomed  to  be  clothed  by  the  thing  itself,  by  words, 
by  writing,  by  consent,  by  delivery. 

704.  Rex  est  caput  et  salus  reipublicee :  (4  Co.  124.) — The  king 

is  the  head  and  guardian  of  the  commonwealth. 

705.  Rex  est  legalis  et  politicus :  (Lane,  27.) — The  king  is  both 

legal  and  politic. 

706.  Rex  est  major  singulis,  minor  universis  :    (Bract,  lib.  1, 

c.  8.) — ^The  king  is  greater  than  any  single  person  :  less 
than  all. 

707.  Rex  non  debet  judicare  sed  secundum   legem :    (Jenk. 

Cent.  9.) — The  king  ought  to  govern  only  according  tO' 
law. 

708.  Rex  non  potest  peccare :  (2  Rol.  Rep.  204.) — Tlic  king 

can  do  no  wronjr:  (MAxrr  SO.) 


284  LEGAL    MAXIMS. 

709.  Rex  nunquam  moritur:  (Brandi.   Max.  5tli  ed.  197.) — 

The  king  never  dies :  (Maxim  87.) 

710.  Rex  qnod  injustum  est  facere  non  potest :  (Jenk.  Cent. 

9.) — The  king  cannot  do  what  is  unjust. 

711.  Rex  semper  praesumitur  attendere  ardua  regni  pro  bono 

publico  omnium ;  (4  Co.  56.) — The  king  is  always  pre- 
sumed to  attend  to  the  business  of  the  realm,  for  the 
public  good  of  all. 

712.  Roj  n'est  lie  per  ascun  statute  si  il  ne  soit  expressement 

nosme :  (Jenk.  Cent.  307.) — The  king  is  not  bound  bj 
any  statute  if  he  be  not  expressly  named  therein : 
(Maxim  88.) 

713.  Sackamentum  habet  in  se  tres  comites,  veritatem,  justi- 

tiam  et  judicium  :  Veritas  habenda  est  in  jurato,  justitia 
et  judicium  in  judice :  (3  Inst.  160.) — An  oath  has  in  it 
three  component  parts,  truth,  justice,  and  judgment : 
truth  is  requisite  in  the  party  swearing,  justice  and  judg- 
ment in  the  judge  administering  the  oath. 

714.  Sacramentum  si  fatuum  fuerit,  licet  falsum,  tamen  non 

committit  perjurium :  (2  Inst.  167.) — A  foolish  oath, 
though  false,  does  not  make  perjury. 

715.  Sacrilegus    omnium  prsedonum   cupiditatum   et   scelera 

superat :  (4  Co.  106.) — Sacrilege  transcends  the  cupidity 
and  wickedness  of  all  other  thefts. 

716.  Salus  populi  est  suprema  lex :  (13  Co.  139.) — The  wel- 

fare of  the  people,  or  of  the  public,  is  supreme  law : 
(Maxim  89.) 

717.  Scientia  utrinque  par  j^ares  contrahentes  facit :  (3  Bur. 

1910.) — Equal  knowledge  on  both  sides  makes  the  con- 
tracting parties  equal. 

718.  Scribere  est  agere :  (2  Rol.  Rep.  89.) — To  write  is  to  act. 

719.  Scriptce  obligationes  scriptis  tolluntur,  et  nudi  consensus 

obligatio  contrario  consensu  dissolvitur:  (Jur.  Civ.) — 


LEGAL    MAXIMS.  285 

"Written  obligations  are  superseded  by  writings,  and  an 
obligation  of  naked  assent  is  dissolved  by  naked  assent. 

720.  Seisina  facit  stipitem :  (Wright  Ten.   185.) — The  seizin 

makes  the  heir. 

721.  Semper  proesnmitur  pro  legitimatione  puerorum ;  et  fili- 

atio  non  potest  probari :  (Co.  Litt.  126.) — It  is  always  to 
be  presumed  that  children  are  legitimate ;  and  filiation 
cannot  be  proved. 

722.  Sententia  interlocutaria  revocari  potest,  definitiva  non  po- 

test :  (Bac.  Max.) — An  interlocutory  sentence  may  be 
recalled,  but  not  a  :tinal. 

723.  Sententia  non  fertur  de  rebus  non  liquidis ;  et  oportet 

quod  certa  res  deducatur  in  judicium :  (Jenk.  Cent.  7.) 
— Sentence  is  not  given  on  things  not  liquidated  ;  and 
something  certain  ought  to  be  brought  to  judgment. 

72i.  Servitia  personalia  sequuntur  personam :  (2  Inst.    374.) 
Personal  services  follow  the  person. 

725.  Sic  utere  tuo  ut  alienum  non  laedas :  (9  Co.  59.) — So  use 

your  own  property  as  not  to  injure  your  neighbor's : 
(Maxim  90.) 

726.  Sicut  natura  nil  facit  per  saltum,  ita  nee  lex :  (Co.  Litt. 

238.) — In  the  same  way  as  nature  does  nothing  by  a 
leap,  so  neither  does  the  law. 

727.  Silentium  in  senatu  est  vitium :  (12  Co.  94.) — Silence  in 

the  senate  is  a  fault. 

728.  Silent  leges  inter  arma  :  (4  Inst.  70.) — The  laws  are  silent 

amidst  arms. 

729.  Simonia  est  voluntas  sive  desiderium  emendi  vel  vendendi 

spiritualia  vel  spiritualibus  adhserentia.  Contractus  ex 
turpi  causa  et  contra  bonos  mores  :  (Hob.  167.) — Simony 
is  the  will  or  desire  of  buying  or  selling  spiritualities, 
or  things  pertaining  thereto.  It  is  a  contract  founded 
on  a  bad  cause,  and  against  morality. 

730.  Simonia  est  vox  ecelesiastica,  a  "  Simone,"  illo  "  Mago," 

deducta,  qui  donum  Spiritus  Sancti  pecunia  emi  putavit : 


280  LEGAL    MAXIMS. 

(3  Inst.  153.) — Simony  is  an  ecclesiastical  word,  derived 
from  that  Simon  Majus  wlio  thought  to  buy  tlie  gift  of 
the  Holy  Ghost  with  money. 

731.  Simplex  obligatio  non  obligat. — A  simple  commendation 

of  goods,  &c.,  by  a  vendor,  binds  not. 

732.  Si  quis  unum  percusserit,  cum  alium  percutere  vellet,  in 

felonia  tenetur  :  (3  Inst.  51.) — If  a  man  kill  one,  mean- 
ing to  kill  another,  he  is  held  guilty  of  felony. 

733.  Si  suggestio  non  sit  vera,  literae  patentes  vacuse  sunt :  (10 

Co.  113.) — If  the  suggestion  be  not  true,  tlie  letters 
patent  are  void. 

734.  Solo  cedit  quicquid  solo  plantatur :  (Went.  Off.  Ex.  57.) 

— What  is  planted  in  the  soil  belongs  to  the  soil. 

735.  Sommonitiones   aut   citationes   nullse   liceant  fieri  infra 

palatium  regis  :  (3  Inst.  141.) — 'No  summonses  or  cita- 
tions are  permitted  to  be  served  within  the  king's 
palace. 

736.  Sponsalia    dicuntur    futuarum   nuptiarum   conventio   ct 

repromissio  :  (Co.  Litt.  34.) — A  betrothing  is  the  agree- 
ment and  promise  of  a  future  marriage. 

737.  Sponte  virum  fugiens  mulier  et  adultera  facta,  dote  sua 

careat,  nisi  sponsi  sponte  retracta :  (Co.  Litt.  37.) — A 
woman  leaving  her  husband  of  her  own  accord,  and 
committing  adultery,  loses  her  dower,  unless  her  hus- 
band take  her  back  of  his  own  accord. 

738.  Statutum  affirmativum  non  derogat  communi  legi :  (Jenk. 

Cent.  24.) — An  affirmative  statute  does  not  take  from 
the  common  law. 

739.  Sublato  fundamento  cadit  opus  :  (Jenk.  Cent.  106.) — Re- 

move the  foundation,  the  superstructure  faUs. 

740.  Subsequens  matrimonium   tollit    peccatum    prsecedens : 

(Reg.  Jur.  Civ.) — A  subsequent  marriage  removes  the 
previous  criminality. 


LEGAL    MAXIMS.  287 

741.  SuccTirritur  minori :  facilis  est  lapsus  juventutis :  (Jenk. 

Cent.  47.) — A  minor  is  to  be  assisted ;  a  mistake  of 
youtli  is  easy. 

742.  Summa  ratio  est  quae  pro  religione  facit :  (Co.  Litt.  341.) 

— The  highest  rule  of  conduct  is  that  which  is  induced 
by  religion  :  (Maxim  91.) 

743.  Super  fidem  chartanim,  mortuis  testibus,  erit  ad  patriam 

de  necessitate  recurrendum  :  (Co.  Litt.  6.) — The  truth 
of  charters  is  necessarily  to  be  referred  to  a  jury,  when 
the  witnesses  are  dead. 

744.  Superfiua  non  nocent :  (Jenk.  Cent.  184.) — Superfluities 

hurt  not. 

745.  Talis  non  est  eadem  ;  nam  nullum  simile  est  idem  :  (4 

Co.  18.) — What  is  like  is  not  the  same  ;  for  nothing 
similar  is  the  same. 

746.  Tantum  bona  valent,  quantum  vendi  possunt :  (3  Inst. 

305.) — Things  are  worth  what  they  will  sell  for. 

747.  Tenor   est   pactio   contra  communem  feudi  naturam  ac 

rationem  in  contractu  interposita  :  ("Wright  Ten.  21.) — 
Tenure  is  a  comjjact  contrary  to  the  common  nature  of 
the  fee,  put  into  a  contract. 

748.  Terminus   annorum  certus  debet  esse  et  determinatus  : 

(Co.  Litt.  45.) — A  term  of  years  ought  to  be  certain 
and  determinate. 

749.  Terminus  et  feodum  non  possunt  constare  simul  in  una 

eademque  persona :  (Plow.  Com.  29.) — The  term  and 
the  fee  cannot  both  be  in  one  and  the  same  person  at 
the  same  time. 

750.  Terra  transit  cum  onere :    (Co.  Litt.  231.) — Land  passes 

with  its  incumbrance. 

751.  Testamenta,  cum    duo    inter  se  pugnantia   reperiuntur, 

ultimum  ratum  est :  sic  est  cum  duo  inter  se  pugnantia 
reperiuntur  in  eodem  tcstamento  :  (Co.  Litt.  112.) — 
When  two  conflicting  wills  are  found,  the  last  prevails  ; 


288  LEGAL    MAXIMS. 

SO  it  is  when  two  conflicting  clauses  occur  in  the  same 
will. 

752.  Testamenta  latissimam  interpretationem  habere  debent : 

(Jenk.  Cent.  81.) — Wills  ought  to  have  the  broadest 
interpretation. 

753.  Testibus  deponentibus  in  pari  numero   dignioribus   est 

credendum  :  (4  Inst.  279.) — Where  the  number  of  wit- 
nesses is  equal  on  both  sides,  the  more  worthy  are  to  be 
believed. 

754.  Testis  lupanaris  sufiicit  ad  factum  in  lupanari :  (Moor, 

817.) — A  strumpet  is  a  sufficient  witness  to  a  fact  com- 
mitted in  a  brothel. 

755.  Testis  cculatus  unus  plus  valet  quam  auriti  decem  :  (4 

Inst.  279.) — One  eye  witness  is  worth  more  than  ten 
ear  witnesses. 

756.  Testmoignes  ne  poent  testifie  le  negative,  mes  I'affirma- 

tive :  (4  Inst.  279.) — Witnesses  cannot  prove  a  negative, 
but  an  affirmative. 

757.  Thesaurus  competit  domino  regi,  et  non  domino  libertatis, 

nisi  sit  per  verba  specialia :  (Fitz.  Corone,  281.) — A 
treasure  belongs  to  the  king,  and  not  to  the  lord  of  a 
liberty,  unless  it  be  through  special  words. 

758.  Thesaurus  inventus  est  vetus  dispositio  pecuniae,  &c.,  cujus 

non  extat  modo  memoria,  adeo  ut  jam  dominum  non 
habeat :  (3  Inst.  132.) — Treasure-trove  is  an  ancient  hid- 
ing of  money,  of  which  no  recollection  exists,  so  that  it 
now  has  no  owner. 

759.  Thesaurus  non  competit  regi,  nisi  quando  nemo  scit  qui 

abscondit  thesaurum  :  (3  Inst.  132.) — Treasure  does  not 
belong  to  the  king,  unless  no  one  knows  who  hid  it. 

760.  Triutio  ibi  semper  debet   fieri,  ubi   juratores  meliorem 

possunt  habere  notitiam :  (7  Co.  1.) — Trial  ought  to  be 
had  always  there  where  the  jury  can  have  the  best 
knowledge. 


LEGAL     MAXIMS.  289 

761.  Turpis  est  pars  quae  non  convenit  cum  suo  toto :  (Plow. 

161.) — That  part  is  bad  wliicli  accords  not  with  its 
whole. 

762.  Tuta  est  custodia  quae  sibimet  creditur :  (Hob.  340.) — 

That  guardianship  is  secure  which  trusts  to  itself  alone. 

763.  Tutius  semper  est  errare  acquitando  quam  in  puniendo, 

ex  parte  misericordiae  quam  ex  parte  justitiae  :  (H.  H. 
P.  C.  290.) — It  is  always  safer  to  err  in  acquitting  than 
in  punishing ;  on  the  side  of  mercy,  than  of  strict 
justice. 

764.  Ubi  cessat  remedium  ordinarium  ubi  decurritur  ad  extra- 

ordinarium  :  (4  Co.  93.)  —  Where  a  common  remedy 
ceases,  there  recourse  must  be  had  to  an  extraordinary 
one. 

765.  Ubi  eadem  ratio  ibi  idem  lex,  et  de  similibus  idem  est 

judicium  :  (Co.  Litt.  191.) — Where  there  is  the  same 
reason,  there  is  the  same  law ;  and  of  things  similar,  the 
judgment  is  similar :  (Maxim  92.) 

766.  IJbi  jus  ibi  remedium :  (Co.  Litt.  197.) — Where  there  is  a 

right,  there  is  a  remedy  :  (Maxim  93.) 

767.  Ubi  lex  aliquem  cogit  ostendere  causam,  necesse  est  quod 

causa  sit  justa  et  legitima :  (2  Inst.  269.) — Where  the 
law  compels  a  man  to  show  cause,  it  is  incumbent  that 
the  cause  be  just  and  legal. 

768.  Ubi  lex  non  distinguit,  nee  nos  distinguere  debemus  :  (7 

Co.  5.) — Where  the  law  distinguishes  not,  we  ought  not 
to  distinguish. 

769.  Ubi  non  est  principalis  non  potest  esse  accessorius :  (4 

Co.  43.) — Where  there  is  no  principal,  there  cannot  bo 
an  accessory. 

770.  Ultima  voluntas   testatoris   est    perimplenda  secundum 

veram  intentionem  suam :    (Co.  Litt.  322.) — The   last 
will  of  a  testator  is  to  be  fulfilled  according  to  his  true 
intention. 
10 


290  LEGAL    MAXIMS. 

771.  Utile  per  inutile  non  vitiatur :  (Djer,  292.) — That  which 

is  useful  is  not  rendered  useless  by  that  which  is  use- 
less :  (Maxim  94.) 

772.  Utlegatus  est  quasi  extra  legem  positus :  caput  gerit  lu- 

pinum  :  (7  Co.  14.) — An  outlaw  is,  as  it  were,  put  out 
of  the  protection  of  the  law ;  he  carries  the  head  of  a 
wolf. 

773.  Ut  poena  ad  paucos,  metus  ad  omnes  perveniat :  (4  Inst. 

6.) — Though  few  are  punished,  the  fear  of  punishment 
affects  all. 

774.  Ut  res  magis  valeat  quam  pereat :  (Noj  Max.  50.) — It  is 

better  for  a  thing  to  have  effect  than  to  be  made  void. 

775.  Yeeba  sequivoca  ac  in  dubio  sensu  posita  intelliguntur 

digniori  et  potentiori  sensu :  (6  Co.  20.) — Words  equi- 
vocal, and  placed  in  a  doubtful  sense,  are  to  be  taken  in 
their  more  worthy  and  effective  sense. 

776.  Yerba  aliquid  operare  debent ;  debent  intelligi  ut  aliquid 

operentur :  (8  Co.  94.) — Words  ought  to  operate  some 
effect ;  they  ought  to  be  interpreted  in  such  a  way  as  to 
operate  some  effect. 

777.  Yerba  chartarum  fortius  accipiuntur  contra  proferentem : 

(Co.  Litt.  36.) — The  words  of  deeds  are  to  be  taken  most 
strongly  against  him  who  uses  them :  (Maxem  95.) 

778.  Yerba  generalia  generaliter  sunt  intelligenda  :  (3  Inst.  76.) 

— General  words  are  to  be  generally  understood. 

779.  Yerba  generalia  restringuntur  ad  habilitatem  rei  vel  apti- 

tudinem  personse :  (Bac.  Max.  Eeg.  10.) — General  words 
are  restrained  according  to  the  nature  of  the  thing  or  of 
the  person :  (Maxim  96.) 

780.  Yerba  intentioni,  non  e  contra,  debent  inservire :  (8  Co. 

94.) — ^Words  ought  to  be  made  subservient  to  the  intent, 
not  contrary  to  it. 

781.  Yerba  illata  in  esse  videntur  :  (Co.  Litt.  359.) — ^Words  re- 

ferred to  are  to  be  considered  as  incorporated. 


LEGAL     MAXIMS.  291 

782.  Verba  posteriora  propter  certitudinem  addita,  ad  priora 

quas  certitudine  indigent  sunt  referenda:  (Wing.) — 
Subsequent  words,  added  for  the  purpose  of  certainty, 
are  to  be  referred  to  preceding  words  wliicli  need  cer- 
tainty. 

783.  Verba  relata  hoc  maxime  operantur  per  referentiam  ut  in 

eis  in  esse  videntur :  (Co.  Litt.  359.) — Words  to  which 
reference  is  made  in  an  instrument  have  the  same  effect 
and  operation  as  if  tliey  were  inserted  in  the  instrument 
referring  to  them  :  (Maxim  97.) 

784.  Yeredictum,  quasi  dictum  veritatis  :    ut  judicium  quasi 

juris  dictum  :  (Co.  Litt.  226.) — The  verdict  is,  as  it 
were,  the  dictum  of  truth  :  as  the  judgment  is  the  dic- 
tum of  law. 

785.  Veritas,  a  quocunque  dicitur,  a  Deo  est :  (4  Inst.  153.) — 

Truth,  by  whomsoever  pronounced,  is  from  God. 

786.  Veritas  nihil  veretur  nisi  abscondi :  (9  Co.  20.) — Truth 

fears  nothing  but  concealment. 

787.  Veritas  nimium  altercando  amittitur :    (Hob.  334.) — By 

too  much  altercation  truth  is  lost. 

788.  Vigilantibus,    et    non    dormientibus,    jura  subveniunt : 

(Wing.  692.) — The  vigilant,  and  not  the  sleepy,  are  as- 
sisted by  the  laws :  (Maxim  98.) 

789.  Violenta  praesumptio  aliquando  est  plena  probatio :  (Co. 

Litt.  6.) — Violent  presumption  is  sometimes  full  proof. 

790.  Viperina  est  expositio  quse  corrodit  viscera  textus :  (11 

Co.  34.) — It  is  a  bad  exposition  which  corrupts  the  text. 

791.  Vir  et  uxor  censentur  in  lege  una  persona  :  (Jenk.  Cent. 

27.) — Husband  and  wife  are  considered  one  person  in 
law. 

792.  Vitium  clerici  nocere  non  debet :  (Jenk.  Cent,  23.) — An 

error  of  a  clerk  ought  not  to  hurt. 

793.  Vix  ulla  lex  fieri  potest  qusE  omnibus  commodo  sit,  sed  si 

majori  parti  prospiciat  utilis  est  :  (Plow.  369.) — Scarce- 


292  LGEAL     MAXIMS. 

ly  any  law  can  be  made  which  is  applicable  to  all  things ; 
but  it  is  useful  if  it  regard  the  greater  part. 

794.  Volenti  non   fit  injuria:  (Wing.   Max.   482.)— That   to 

which  a  man  consents  cannot  be  considered  an  injury  : 
(Maxim  99.) 

795.  Voluntas  donatoris  in  charta  doni  sui  manifeste  expressa 

observetur :  (Co.  Litt.  21.) — The  will  of  the  donor 
manifestly  expressed  in  his  deed  of  gift  is  to  be  ob- 
served. 

796.  Voluntas  in  delictis  non  exitus  spectatur  :  (2  Inst.  57.) — 

In  crimes  the  will,  and  not  the  result,  is  looked  to. 

797.  Voluntas  reputabatur  pro  facto  :  (3  Inst.  69.) — The  will 

is  to  be  taken  for  the  deed :  (Maxim  100.) 

798.  Voluntas  testatoris  est  ambulatoria  usque  ad  extremum 

vitae  exitum  :  (4  Co.  61.) — The  will  of  a  testator  is  am- 
bulatory until  death. 

799.  Voluntas  testatoris  habet  interpretationem  latam  et  be- 

nignam :  ( Jenk.  Cent.  260.) — The  intention  of  a  testator 
has  a  broad  and  benignant  interpretation. 

800.  Vulgaris  opinio  est  duplex,  viz.,  orta  inter  graves  et  dis- 

cretos,  quae  multum  veritatis  habet,  et  opinio  orta  inter 
leves  et  vulgares  homines,  absque  specie  veritatis :  (4 
Co.  107.) — Common  opinion  is  double,  viz.,  that  pro- 
ceeding from  grave  and  discreet  men,  which  has  much 
truth  in  it,  and  that  proceeding  from  foolish  and  vulgar 
men,  without  any  sort  of  truth  in  it. 


PART  III. 
SEVERAL    HUNDRED    MAXIMS, 

WITH 

REFERENCES  TO  AMERICAN  CASES. 


The  Maxims  of  Jurisprudence  are  very  constantly  cited  as 
authority,  and  followed,  in  the  American  courts.  In  addition  to 
Mr.  Wharton's  references  to  cases  decided  in  the  English  courts, 
as  found  in  the  various  volumes  of  English  reports,  with  which  he 
illustrates  the  One  Hundred  Maxims  gathered  by  him,  we  here  give, 
as  a  supplement  to  his  collection,  and  as  of  peculiar  value  to  the 
American  practitioner,  the  following  list,  taken  by  permission  from 
Abbott's  New  York  Digest,  which  contains  several  hundred  legal 
maxims.  These  have  been  applied,  or  commented  on,  by  the  court 
of  last  resort,  or  other  courts  of  general  jurisdiction,  of  the  State  of 
New  York,  in  the  cases  cited  under  them. 

Many  of  these  maxims,  it  will  be  observed,  are  the  same  as  those 
cited  by  Mr.  Wharton;  and  the  cross  references  will  indicate  to 
the  reader  that  some  are  very  nearly,  if  not  substantially  like  others, 
in  a  different  alphabetic  place  in  the  list.  As  the  difference  of  ex- 
pression, however,  often  embodies  a  significant  difference  in  the 
shade  of  meaning,  each  is  given  in  its  own  proper  place.  This  list 
includes,  it  is  believed,  all  the  most  important  legal  maxims  occur- 
ring in  American  practice. 


LEGAL   MAXIMS, 

WITH  EEFERENCES   TO   LEGAL  DECISIONS. 


FROM     ABBOTTS'     NEW    YORK    DIGEST. 

[The  authorities  referred  to  under  each  maxim  given  in  this  table,  include  both  those  in  whicli 
■the  maxim  has  been  applied,  and  those  in  which  it  has  been  qualified,  or  its  application  limited.] 

1.  Accessorium  nou   ducit,  sed  seqiiitur  suiim  princi- 

pale. 

Jackson  v.  Willard,  4.  Johns.  41,  43  ;  Van  Wicklain  v.  Paulson,  14  Barb. 
€54,  656 ;  Cooper  v.  Newland,  17  Abb.  Pr.  343,  344  ;  Battle  v.  Coit,  26  N.  Y. 
404,  406  ;  compare  235  (below). 

Accessoriiis  sequitur  naturam  sui  principalis. 

Marshall  v.  Moseley,  21  N.  Y.  280,  282. 

2.  Acta  exteriora  indicant  interiora  secreta. 

Van  Brunt  v.  Schenck,  11  Johns.  377,  387. 

3.  Actio  personalis  luoritur  ctim  persona. 

Franklin  v.  Low,  1  Johns.  390,  404  ;  People  v.  Gibbs,  9  Wend.  29,  30 ; 
"Wel)ber  v.  Underhill,  19  Id.  447,  449  ;  Osborn  v.  Bel),  5  Den.  370,372; 
Zabriskie  v.  Smith,  13  N.  Y.  323,  333  ;  Hopkins  v.  Adams,  5  Abb.  Pr.  351, 
352  ;  Whitford  v.  Panama  R.  K.  Co.  23  N.  Y.  465,  476  ;  affi'g  3  Bosw.  67, 
84;  Emerson  v.  Bleakley,  3  Abb.  Ct.  App.  Dec.  23;  Green  v.  Hudson 
Eiver  R.  R.  Co.  Id.  377. 

4.  Actori  incnmbit  probatio. 

Fisk  V.  Potter,  Id.  138. 

5.  Actus  non  tacit  reum,  nisi  mens  sit  rea. 

People  V.  Crosswell,  3  Johns.  Cas.  337,  364  ;  Genet  v.  Mitchell,  7  Jolms. 
130,  131;  People  v.  Kelly,  35  Barb.  444,  456. 

6.  Ad  proximum  antecedens  fiat  relatio. 

Nicoll  V.  Trustees  of  Huntington,  1  Johns.  Ch.  166,  183. 

V 

1.  Ad  qusestiones  facti  non  respondent  judices;  ad  qiia?s- 
tiones  legis  nou  resijoudeut  juratores. 


296  LEGAL  MAXIMS  WITH 

Hasten  v.  Deyo,  2  Wend.  424.  427 ;  People  v.  Crosswell,  3  Johns.  Cas. 
337,  369;  People  v.  Cook,  8  N.  Y.  67,  75;  and  see  Besson  v.  Southard,  10 
N.  Y.  236;  compare  347  (below). 

8.  Adulterium  non  probatur  contra  alium,  sola  mulieris 

confessione. 

Betts  V.  Belts,  1  Johns.  Ch.  197,  199. 

9.  iEquitas  sequitur  legem. 

Marshall  v.  Moseley,  21  N.  Y.  280,  204;  Thurman  v.  Anderson,  30  Barb. 
621,  622;  Buchan  v.  Sumner,  2  Barb.  Ch.  165-,  182;  and  see  85  {below). 

10.  Alienatio  licet  prohibeatur,  consensu  tamen  omnium 

in  quorum  favorem  prohibita  est,  potest  fieri. 

People  V.  Van  Rensselaer,  9  N.  Y.  291,  335. 

11.  Aliquis  non  debet  esse  judex  in  propria  causa ;  imo^ 

iniquum  est  aliquem  suae  rei  esse  judicem. 

Lansing  v.  Albany  Ins.  Co.  Hopk.  102. 

12.  Aliud  est  celare,  aliud  tacere,  &c. 

Gates  V.  Madison  County  Mutual  Ins.  Co.  5  N.  Y.  469,  474 ;  Paul  v^ 
Iladley,  23  Barb.  521,  526. 

13.  AUegans  suam  turpitudinem  non  est  audiendus. 

Underbill  v.  Van  Cortlandt,  2  Johns.  Ch.  339,  350  ;  compare  190,  192, 
209  {below). 

14.  All  the  powers,  being  derived  from  equity,  are,  even 

in  a  court  of  law,  to  be  construed  equitably. 

Brant  v.  Gelston,  2  Johns.  Cas.  384,  397. 

15.  A  man  cannot  grant  or  convey  what  he  does  not 

own. 

Seymour  v.  Canandaigua  &  Niagara  Falls  R.  R.  Co.  25  Barb.  284,  301 ; 
compare  Saltus  v.  Everett,  20  Wend.  267;  Fassett  v.  Smith,  23  N.  Y.  252; 
Brower  v.  Peabody,  13  N.  Y.  121 ;  Beavers  v.  Lane,  6  Duer,  232;  compare 
198,  207,  276  {beloic). 

16.  A  man  may  not  insist  at  different  times  on  the  truth 

of  each  of  two  conflicting  allegations,   according 
to  the  promptings  of  his  private  interest. 

Carnes  v.  Piatt,  7  Abb.  Pr.  N.  S.  42,  45. 

17.  A  man  shall  so  use  his  own  as  not  to  interfere  with 

others. 

Doellner  r.  Tynan,  38  How.  Pr.  176;  compare  f3,  314  {belou). 


REFERENCES  TO  LEGAL  DECISIONS.  29T 

18.  A  man's  own  acts  shall  be  taken   most   strongly 

against  himself. 

Richards  v.  Warring,  39  Barb.  42,  55. 

19.  Ambiguitas  verborum  latens,  latens  verificatione  sup- 

pletur ;  nam  quod  ex  facto  oritur  ambignum,  veri- 
ficatione facti  tollitur. 

Hyatt  V.  Pugsley,  23  Baib.  285,  297. 

20.  An  affirmative  statute  does  not  take  away  the  com- 

mon law. 

Pairchild  v.  Gwynne,  14  Abb.  Pr.  121,  125  ;  compare,  however,  Cook 
t.  Kelley,  13  Id.  35. 

21.  An  agreement  under  seal  can  only  be  dissolved  ea 

ligamine  quo  ligatur. 

Allen  v.  Jaquish,  21  Wend.  (528,  632  ;   Howard  v.  Cooper,  1  Hill,  44, 
49. 

22.  An  alienation  pending  a  suit  is  void. 

Murray  v.  Ballou,  1  Johns.  Ch.  566,  580;  compare  250  (below). 

23.  An  estate  which  once  existed  must  continue  to  re- 

side somewhere. 

Mosher  ».  Yost,  33  Barb.  277,  280. 

24.  Any  one  may,  at  his  pleasure,  renounce  the  benefit  of 

a  stipulation  or  other  right  introduced  entirely  in 
his  own  favor. 

Conkling  ».  King,  10  N.   Y.   440,446;    compare   25,    274,    275,  282 
(fiebw). 

25.  A  party  may  waive  the  benefit  of  any  condition  or 

provision  made  in  his  behalf,  no  matter  in  what 
manner  it  may  have  been  made  or  secured. 

Goit  V.  National  Protection  Ins.  Co.  25  Barb.  189,  191  ;    compare  24 
{above),  274,  275,  282  {below). 

26.  A  party  who  is  silent  when  he  ought  to  speak  shall 

not  be  permitted  to  speak  afterwards  to  the  preju- 
dice of  those  who  have  been  induced  to  act  upon 
such  omission  to  speak. 

Twinam  i).  Swart,  4  Lans.  203,  267. 


298  LEGAL  MAXIMS  WITH 

27.  A  penal  law  is  not  to  be  construed  so  strictly  as  to 
defeat  the  obvious  intention  of  the  legislature. 

Cotheal  v.  Brouwer,  5  N.  Y.  562,  567 ;  People  v.  K  T.  Central  R.  R. 
Co.  25  Barb.  199,  201. 

^8.  Apices  juris  non  sunt  jura. 

Holmes  v.  Remsen,  20  Johns.  229,  261. 

29.  Aqua  currit  et  debet  currere. 

Robinson  v.  N.  Y.  &  Erie  R.  R.  Co.  27  Barb.  512,  523 ;  Varick  v.  Smith, 
5  Paige,  137,  147  ;  Pixley  v.  Clark,  35  N.  Y.  520,  524  ;  Bellinger  v.  N.  Y. 
Central  R.  R.  Co.  23  N.  Y.  42,  47. 

ut  currere  solebat.  , 

Carhart  r.  Auburn  Gas  Light  Co.  22  Barb.  297,  312  ;  Clinton  r.  Myers, 
46  N.  Y.  511,"516. 

30.  Arbor  dum  crescit ;  lignum  dum  crescere  nescit. 

Dexter  v.  Taber,  12  Johns.  239,  241. 

31.  A  subsequent  adoption  is  equivalent  to  a  prior  au- 

thority. 

Altemus  v.  Mayor,  «fec.  of  N.  Y.  6  Duer,  446. 

32.  A  thing  that  is  within  the  letter  of  a  statute,  is  not 

within  the  statute,  unless  it  be  within  the  inten- 
tion of  the  law  makers. 

Wynkoop  v.  Halbut,  43  Barb.  266,  268. 

33.  A  trustee  can  never  be  a  purchaser. 

Davoue  v.  Fanning,  2  Johns.  Ch.  252.  267;  and  see  Gardner  v.  Ogden, 
22  N.  Y.  337,  349. 

34.  Audi  alteram  partem. 

Lowry  v.  Innian,  46  N.  Y.  119,  123;  affi'g  2  Sweeny,  117;  Morewood 
V.  HoUister,  6  N.  Y.  309,  328. 

35.  Ausis  talibus  istis  non  jura  subserviunt. 

Wheelwright  v.  Depeyster,  1  Johns.  471,  481. 

36.  Authority  to  execute  a  deed  must  be  given  by  deed. 

Blood  V.  Goodrich,  9  Wend.  68,  75. 

37.  A  verbis  legis  non  est  recedendum. 

Forrest  v.  Forrest,  10  Barb.  46,  48. 

38.  Be  careful,  purchaser. 

Rawls  V.  Deshler,  4  Abb.  Ct.  App.  Dec,  12 ;  see,  also,  44  (below). 


REFERENCES  TO  LEGAL  DECISIONS.  299 

39.  Benigne  faciendse  sunt  interpretationes  chartarum, 

ut  res  magis  valeat,  quam  pereat. 

Henderson  v.  Spofford,  3  Daly,  361 ;  affi'd  in  59  N.  Y.  131. 

et  qiitelibet  concessio  fortissime  contra  donato- 

reminterpretanda  est. 

Hayes  v.  Kersbow,  1  Sar.df.  Ch.  358,  263;  compare  275,' 277  (below). 

40.  Bona  fides  non  i)atitur,  ut  bis  idem  exigatur. 

Ferine  v.  Dunn,  4  Johns.  Ch.  140,  143. 

41.  Bonitatis  aestimationem  faciendam  cum  pars  evin- 

citur. 

Morris  v.  Phelps,  5  Johns.  49,  56. 

42.  By  a  grant  of  the  reversion  the  rent  passes. 

Payne  v.  Beal,  4  Den.  405,  410. 

43.  Causa  proxima,  non  remota  spectatur. 

Patrick  v.  Commercial  Ins.  Co.  11  Johns.  14,  15;  St.  John?).  American 
Mutual  Fire  &  Marine  Ins.  Co.  11  N.  Y.  516,  533;  Read  v.  Spiulding,  5 
Bosw.  395,  408 ;  Bradley  v.  Mutual  Benefit  Life  Ins.  Co.  45  N.  Y.  433  ; 
compare  143,  330  (below). 

44.  Caveat  emptor. 

Hoe  V.  Sanborn,  31  N.  Y.  553,  558 ;  Elwell  v.  Chamberlain,  4  Bosw. 
330,  334;  Hawkins  v.  Pemberton,  51  N.  Y  198  ;  Bartlett  v.  Hoppock,  34 
N.  Y.  118.  130;  Scranton  v.  Clark,  39  Id.  330,  333;  Murray  v.  Trustees  of 
Ringwood  Co.  3  Johns.  Cas.  278,  379;  Swett  v.  Colgate,  20  Id.  198,  303; 
Oneida  Manufacturing  Society  ■».  Laurence,  4  Cow.  440,  443;  Welsli  v. 
Carter,  1  Wend.  185,  189;  Gallagher  v.  Waring,  9  Id.  30,  37;  Jackson  v. 
Robert,  11  Id.  433,  433;  Boorman  v.  Jenkins,  13  Id.  566,  57t);  Hart  v. 
Wright,  17  Id.  367,  375;  Waring  v.  Mason,  IS  Id.  435,  43-3,  448;  Wright 
V.  Hart,  18  Id.  449,  453,  455  ;  Salisbury  v.  Staiuer,  19  Id.  159,  161;  How- 
ard V.  Hoey,  23  Id.  350,  353;  Cleves  ».  Willoughby,  7  Hill,  83,  85;  Moses 
V.  Mead,  1  Den.  378,  385  ;  Davis  v.  Sims,  Hill  &  D.  Supp.  334,  335;  Hazul 
V.  Dunham,  1  Hall,  655,  658 ;  Hargaus  v.  Stone,  5  N.  Y.  73.  81 ;  Pierre- 
pont  0.  Barnard,  6  N.  Y.  379,  391 ;  IJurwell  v.  Jackson,  9  N  Y.  535,  541 ; 
McCoy  w.Artcher,  3  Barb.  333,  337,  330,  331;  Carley  y.  Wilkin?,  6  Id. 
557,  501;  Clarke  v.  Baird,  7  Id.  6t,  67;  Paul  v.  Hadley,  33  Id.  531,  535, 
527;  Hotchkiss  v.  Gage,  36  Id.  141,  143;  Boirne  v.  Dord,  3  Sandf.  89,  93; 
N.  Y.  Marble  Iron  Works  v.  Smith,  4  Duer,  363;  and  see  Mumford  v.  Mc- 
Pherson,  1  Johns.  414,  417  ;  Meeks  i).  Bowerman,  1  Daly,  99,  101;  John- 
son V.  Dixon,  1  Id.  178,  183;  Rawls  v.  De.hler,  4  Abb.  Ct.  App.  Dec.  13; 
Newton  v.  Porter,  5  Lans.  416;  and  see  38  (above). 

45.  Caveat  venditor. 

Wright  V.  Hart,  18  Wend.  449,  453,  463;  Howard  v.  IIocv,  23  Id.  350, 
353 ;  Hargous  ».  Stone,  5  N.  Y.  73,  83 ;  McCoy  v.  Artchcr,  "3  Barb.  333, 
331;  Hoe  ».  Sanborn,  31  N.  Y.  553,  658. 


300  LEGAL  MAXIMS  WITH 

46.  Certum  est  quod  certiim  reddi  potest. 

Hubbel  V.  McCulloch,  47  Barb.  287,  294  ;  Fitzhugh  v.  Raymond,  49  Id. 
645,  G49  ;  compare  128  {heloic). 

47.  Cessante  causa  cessat  effectus. 

Rogers  v.  Rogers,  3  Wend.  503,  >509;  White  v.  Meday,  2Edw.  486,  489. 

48.  Oessant'e  ratione  legis,  cessat  ipse  lex. 

Parks  V.  Jackson,  11  Wend.  443,  456  ;  Dewitt  v.  Barley,  9  K  Y.  371, 
375  ;  Van  Rensselaer  v.  Smith,  27  Barb.  104, 148 ;  Grant  v.  Quick,  5  Sandf. 
612,  613;  Langdon  v.  Astor,  3  Duer,  477,  557;  Berley  v.  Rampacher,  5  Id. 
183,  186;  Tate  v.  Jordan,  3  Abb.  Pr.  392,  394  ;  and  see  Green  v.  Hudson 
River  R.  R.  Co.  3  Abb.  Ct.  App.  Dec.  277. 

49.  Common  opiuion  is  good  authority  in  law. 

Bank  of  Utica  v.  Merscreau,  3  Barb.  Ch.  528,  577 ;  Belmont  «.  Erie 
Railw.  Co.  53  Barb.  637,  674. 

50.  Communis  error  facit  jus. 

Yates  v.  Lansing,  9  Johns.  395,  420 ;  Jackson  v.  Gilchrist,  15  Id.  89, 
110  ;  Troup  v.  Haiglit,  Hopk.  239,  251 ;  Ayrault  v.  Houghtailing,  1  Hill, 
635,  636;  Constantine  v.  Van  Winkle,  6  Id.  177,  205. 

51.  Consensus  tollit  errorem. 

Rogers  «.  Ciuger,  7  Johns.  557,  611  ;  Watkins  v.  Weaver,  10  Id.  107, 
108  ;  Yates  v.  Eusseli,  17  Id.  461,  466  ;  Farrington  v.  Hamblin,  12  Wend. 
212,  213;  Chambers  v.  Clearwater,  1  Abb.  Ct.  App.  Dec.  341. 

52.  Consensus,  non  concubitus,  facit  matrimonium. 

Hayes  v.  People,  25  N.  Y.  390,  397 ;  see  330  (below). 

53.  Consent  will  not  confer  jurisdiction. 

Maurer  v.  People,  43  ]S^.  Y.  1. 

54.  Contemporanea  expositio  est  fortissima  in  lege. 

Knight  V.  Campbell,  62  Barb.  16. 

55.  Conventio  vincit  legem. 

Allen  ®.  Jaquish,  21  Wend.  628,  631  ;  Baker  v.  Hoag,  7  Barb.  113,  117  ; 
compare  165  (below). 

66.  Copulatio  verborum  indicat  acceptionem  in  eodem 
sensu. 

Breasted??.  Farmers'  Loan  &  Trust  Co.  8  N.  Y.  299,  305;  Ballowr.  Cun- 
ningham, 60  Barb.  425. 

57.  Coram  non  judice. 

De  Comeau  v.  People,  7  Robt.  498. 


REFERENCES  TO  LEGAL  DECISIONS.  301 

58.  Courts  of  equity  delight  to  do  justice,  and  that  not 

by  halves. 

Tallmau  v.  Varick,  5  Barb.  277,  280. 

59.  Crimen  omnia  ex  se  nata  vitiat. 

Henry  v.  Bank  of  Salina,  5  Hill,  533,  531. 

60.  Crimen  trahit  personam. 

People  V.  Adams,  8  Den.  190,  210. 

61.  Cuilibet  in  sua  arte  peri  to  est  credendum. 

Vandenheuvel  v.  Ignited  Ins.  Co.  2  Johns.  Cas.  127,  143;  O'Donaghue 
t'.  McGovern,  23  Wend.  26,  33. 

62.  Cujus  est  solum,  ejus  est  usque  ad  coelum. 

Hoffman  v.  Armstrong,  46  Barb.  337,  338  ;  Relyea  v.  Beaver,  34  Barb. 
547,  551 ;  Lampman  v.  Milks,  21  N.  Y.  505,  511 ;  People  v.  Central  R.  R. 
Co.  42  N.  Y.  283,  296 ;  rev'g  48  Barb.  478. 

et  ad  inferos. 

Maban  v.  Brown,  13  Wend.  261,  263;  Auburn  &  Cato  Plank  Road  Co. 
e.  Douglass,  9  N.  Y.  444,  446;  Rowan  v.  Kelsey,  18  Barb.  484,  489;  Can- 
field  V.  Ford,  28  Id.  336,  338. 

63.  Cum  duo  inter  se  pugnantia  reperiuntur  in  testa- 

mento,  ultimiim  ratum  est. 

Bradstreet  v.  Clarke,  12  Wend.  601,  665. 

64.  Custom  is  the  best  interpreter  of  the  law. 

Meriam  v.  Harsen,  2  Barb.  Ch.  232,  269  ;  Bank  of  Utica  v.  Mersereau, 
3  Id.  528,  577;  compare  244  (below). 

65.  Damnum  absque  injuria. 

Cowles  V.  Balzer,  47  Barb.  562,  573 :  Arnold  r;.  Hudson  River  R.  R.  Co. 
49  Id.  108,  122  ;  rev'd  in  55  N.  Y.  108  ;  Lewis  v.  Park  Bank,  2  Daly,  85, 
92 ;  Donohue  o.  Mayor  of  New  York,  3  Daly,  69. 

66.  Debet  sua  cuique  domus  esse  perfugium  tutissimum. 

Clason  V.  Shotwell,  12  Johns.  51,  54. 

67.  Debitum  et  contractus  sunt  nullius  loci. 

Post  V.  Jackson,  17  Johns.  239,  345;  Molony  v.  Dows,  8  Abb.  Pr.  316, 
328;  compare  213  (below). 

68.  Debitum  in  praesenti,  solvendum  in  futuro. 

Burrill  v.  Sheil,  2  Barb.  457,  470;  Utica  Ins.  Co.  v.  American  Mutual 
Ins.  Co.  16  Id.  171,  176;  Allen  v.  Hudson  River  Mutual  Ins.  Co.  19  Id. 
442,  415;  Leggctt  v.  Bank  of  Sing  8ing,  24  N.  Y.  283,  291. 


302  LEGAL  MAXIMS  WITH 

69.  Definitiva  sententia  quae  condemnationera  vel  abso- 

lutionem  non  continet,  i)ro  justa  nou  babetur. 

Smith  V.  Spalding,  3  Robt.  615,  618. 

70.  Delegatus  non  potest  delegare. 

Newton  v.  Bronson,  13  N.  Y.  587,  594;  Berger  v.  DuflF,  4  Johns.  Ch. 
868,  369;  Hunt  v.  Bund,  5  Johns.  137;  Thorne  v.  Cramer,  15  Barb.  113, 
116;  Grinnell  v.  Buchanan,  1  Daly,  538,  540  ;  Lewis  v.  Ingersoll,  3  Abb. 
Ct.  App.  Dec.  55. 

71.  De  minimis  non  curat  lex. 

Bergen  v.  Boerum,  2  Cai.  256,  258;  Exp.  Becker,  4  Hill,  613.  615;  U. 
S.  Trust  Co.  V.  V.  S  Fire  Ins.  Co.  18  N.  Y.  19a.  218;  Smith  v.  Gugertv,  4 
Barb.  614,  620;  Hall  «.  Fisher,  9  Id.  17,  29;  EllicottTille,  &c  Plank  Road 
Co.  V.  Buffalo,  &c.  R.  R.  Co.  20  Id.  644,  651  ;  Ccrwithe  v.  Griffing.  21  Id. 
9,  15;  Woolsey  v.  Judd,  4  Duer.  596,  599  ;  Shipman  v.  Shaler.  14  Abb. 
Pr.  449,  456;  Masterson  t.  Short,  3  Abb.  Pr.  N.  S.  154;  compare  337 
(below). 

72.  De  non  apparentibus  et  de  non  existentibus  eodem 

est  ratio. 

Johnson  v.  Stagsr,  2  Johns.  510,  519;  Youngs  v.  Lee,  12  N.  Y.  551,  554; 
Cook  V.  Litchfield,  5  Sandf.  330,  340;  Cox  v.  James,  59  Barb.  144. 

73.  Discretio  est  scire  per  legem  quid  sit  justum. 

Le  Roy  v.  Corporation  of  N.  Y.  4  Johns.  Ch.  352,  356. 

74.  Distinguenda  sunt  tempora. 

Owens  V.  Missionary  Society,  14  N.  Y.  380,  393. 

75.  Donatio  j)erficitur  possessione  acciijientis. 

Pearson  v.  Pearson,  7  Johns.  26,  28. 

70.  Dormit  aliquando  jus,  moritur  nunquam. 

Jackson  v.  Brinckerhoflf,  3  Johus.  Cas.  101,  103.   . 

77.  Dos  de  dote  peti  non  debet. 

Dunham  v.  Osborn,  1  Paige,  634,  636;  Safford  «.  Safford,  7  Id.  259, 
260;  Matter  of  Cregicr,  1  Barb.  Ch.  598,  602;  Elwood  v.  Klock,  13  Barb. 
50,  55;  Durando  i;.  Durando,  23  N.  Y.  331,  333. 

78.  Ei  incumbit  probatio  qui  dicit,  non  qui  negat. 

Sowarby  v.  Russell,  4  Abb.  Pr.  N.  S.  238,  243;  s.  c.  6  Robt.  322,  324; 
Rathbone  v.  Stocking,  2  B,rb.  135,  148. 

79.  Emptor  emit  quam  minimo  potest ;  venditor  vendit 

quam  maximo  potest. 

Davoue  v.  Fanning,  2  Johns.  Ch.  252,  256 ;  Gardner  v.  Ogden,  22  N. 
Y.  327,  343;  Cumberland  Coal  Co.  t.  Stierman,  30  Barb.  553,  663. 


REFERENCES  TO  LEGAL  DECISIONS.  303 

80.  Enumeratio  unius  est  exclusio  alterius. 

Matter  of  Washburn,  4  Johns.  Ch.  106,  113;  compare  103,  136  {below). 

81.  Eodem  modo  quo  oritur,  eodera  modo  dissolvitur. 

Barnard  v.  Darling,  11  Wend.  28,  30;  Fellows  v.  Stevens,  24  Id.  294, 
298. 

82.  Equality  is  equity.  < 

Murray  v.  Riggs,  15  Johns.  571,  583;  Norton  v.  Coons,  6  N.  T.  33,  40; 
Brouwer  v.  Harbeck,  9  N.  Y.  589,  593;  Murphy  v.  Harvey,  4  Edw.  131, 
133;  Osgood  v.  Laytin,  3  Abb.  Ct.  App.  Dec.  418. 

83.  Equality  is  justice. 

Nicholson  v.  Leavitt,  4  Sandf.  252,  281. 

84.  Equitable  relief  will  not  be  granted  to  a  suitor  un- 

less he  comes  into  court  with  clean  hands. 

Tripp  ».  Cook,  26  Wend.  143,  IGO;  compare  125  (below). 

85.  Equity  follows  the  law. 

Tallman  v.  Varick,  5  Barb.  277,  282:  Snow  v.  Fourth  National  Bank,  7 
Robt.  479;  and  see  9  (above). 

86.  Equities  prevail  in  the  order  of  time  in  which  they 

occur. 

Leggstt  V.  Bank  of  Sing  Sing,  24  N.  Y.  283,  296. 

87.  Equity  favors  and  rewards  diligence. 

Jervis  v.  Smith,  7  Abb.  Pr.  N.  S.  217,  222. 

88.  Equity  regards  whatever  is  ordered  to  be  done  by 

one  having  authority,  or  what  ought  to  be  done, 
as  actually  done. 

Burch  V.  Newberry,  1  Barb.  648,  664;  compare  335,  377  (below). 

89.  Equity  regards  that  as  already  done  which  parties 

have  agreed  should  be  done,  and  which  ought  to 
have  been  done. 

Lanning  v.  Tompkins,  45  Barb.  808,  316. 

90.  Est  boni  judicis   ampliari  justitiam,   non  jurisdic- 

tionem. 

People  V.  Judges  of  Dutchess  Oyer  &  Terminer,  2  Barb.  282,  287. 

91.  Every  man  presumed  innocent  until  found  guilty. 

People  V.  Goodwin,  1  Wheel.  Cr.  437. 


304  LEGAL  MAXIMS  WITH 

92.  Every  man's  assent  is  to  be  presumed  to  a  statute. 

Holmes  v.  Remsen,  20  Johns.  239,  260. 

93.  Everj^  one  is  bound  so  to  use  his  own  property  that 

it  shall  not  be  the  means  of  injury  to  his  neigh- 
bors. 

Brown  v.  Cayuga  &  Susquebanna  R.  R.  Co.  12  N.  Y.  486,  494 ;  and  see 
Beisiegel  v.  N.  Y.  Central  R.  R.  Co.  40  N.  Y.  9;  compare  17  {above);  314, 
333  (below). 

94.  Everything  shall  be  taken  most  strongly  against  the 

pleader. 

Allen  V.  Patterson,  7  N.  Y.  476,  480. 

95.  Evidentissimis  probationibus  ostendatur  testatoreni 

multiplicasse  legatum  voluisse. 

Dewitt  V.  Yates,  10  Johns.  156,  159. 

96.  Ex  antecedentibus  et  consequentibus  fit  optima  in- 

terpretatio. 

.  Rogers  v,  Rogers,  3  Wend.  503,  526. 

97.  Ex  dolo  malo  non  oritur  actio. 

Graves  v.  Delaplaine,  14  Johns.  146,  156;  Nellis  v.  Clark,  30  Wend.  24, 
32;  Tracey  v.  Talmage,  14  N.  Y.  162,  181;  St.  John  v.  St.  John's  Church, 
15  Barb.  346,  347 ;  Merritt  v.  Millard,  3  Abb,  Ct.  App.  Dec,  291. 

98.  Ex  nihilo  nihil  fit. 

Harlem  Gas  Light  Co.  v.  Mayor,  &c.  of  N.  Y.  3  Robt.  100,  137. 

99.  Ex  nihil  nil  fit. 

Jackson  v.  Waldron,  13  Wend.  178,  231;  Root  v.  Stuyvesant,  18  Id. 
257,  301. 

100.  Ex  nudo  pacto  non  oritur  actio. 

Jackson  v.  Alexander,  3  Johns.  484,  488;  Vander  Volgen  v.  Yates,  9 
N.  Y.  219,  223;  Farringlon  v.  Bullard,  40  Barb.  513,  515. 

101.  Expedit  reipublicae  ut  sit  finis  litium. 

French  v.  Shotwell,  5  Johns.  Ch.  555,  568;  and  see  Calkins  v.  Calkins,. 
3  Barb.  305,  310;  Tomlinson  v.  Miller,  7  Abb.  Pr.  N.  S.  364,  374;  com- 
pare 150  (below). 

102.  Expressio  eorum  quae  tacite  insunt  nihil  operatur. 

Curtis  V.  Leavitt,  15  N.  Y.  9,  130;  Ames  v.  Belden,  17  Barb.  513,  517; 
Gelpcke  v.  Quentell,  59  Barb.  250. 


REFERENCES  TO  LEGAL  DECISIONS.  305 

103.  Exi)ressio  unius  est  exclusio  alteriiis. 

Baker  d.  Ludlow,  2  Johns.  Cas.  289,  290;  Rogers  v.  Warner,  8  Johns. 
119,  120;  Van  Steenbergh  v.  Kortz,  10  Id.  167,  170;  Delaware  &  Hudson 
Canal  Co.  v.  Dubois,  15  Wend.  87,  93;  Conklin  v.  Egercon,  21  Id.  430,  445; 
Allen  V.  Dykers,  3  Hill,  593,  597;  Bowen  v.  Lease,  5  Id.  221,  224;  Wait 
«.  Wait,  4  N.  Y.  95,  101;  Barto  v.  Himrod,  8  N.  Y.  483,  493;  Morey  v. 
Farmers'  Loan  &  Trust  Co.  14  N.  Y.  302,  306 ;  Curtis  ».  Leavitt,  15  N.  Y. 
9,  59,  211,  259;  Sill  v.  Village  of  Corning,  Id.  297,  306;  People  v.  Draper, 
Id.  532,  568;  Poler  v.  N.  Y.  Central  R.  R.  Co.  16  N.  Y.  476,  479;  Hayner 
-p.  James,  17  N.  Y.  316,  322;  Behan  v.  People,  Id.  516,  520;  Leavitt  v. 
Blatchford,  Id.  521.  558;  Methodist  Episcopal  Church  v.  Jacques,  3  Johns. 
Ch.  77.  110;  Callighan  v.  Atlantic  Ins.  Co.  1  Edw.'74,  76;  McKoan  v.  De- 
vries,  3  Barb.  196,  198;  Leavitt  v.  Blatchford,  5  Id.  9,  13;  Chautauque 
County  Bank  v.  White,  6  Id.  589,  599;  Viele  v.  Osgood,  8  Id.  130,  133; 
FoUett  V.  People,  17  Id.  193,  196;  Morey  v.  Farmers'  Loan  &  Trust  Co.  18 
Id.  401,  405;  Chirke  v.  City  of  Rochester,  24  Id.  446,  504;  Billings  «. 
Baker,  28  Id.  343,  357;  Rich  v.  Husson,  1  Duer,  617,  621 ;  People  v.  Behan, 
7  Abb.  Pr.  82,  86;  McCarron  v.  People,  2  Park.  Cr.  183,  194;  People  r. 
Holcomb,  3  Id.  656,  665 ;  and  see  Lester  v.  Thompson.  1  Johns.  300 ;  Peo- 
ple V.  Cancemi,  7  Abb.  Pr.  271,  289;  Bellinger  v.  N.  Y.  Central  R.  R.  Co. 
23  N.  Y.  42,  50;  Matter  of  BonaflFee,  Id.  169, 177;  People  v.  Commission- 
ers of  Taxes,  Id.  242,  246;  Moultrie  «.  Hunt,  Id.  394,  419;  People  v.  N.  Y. 
Central  R.  R.  Co.  24  Id.  485,  495;  Robbins  v.  Fuller.  Id.  570,  577;  Hoyt  v. 
Shelden,  3  Bosw.  207.  293;  Van  Allen  v.  Illinois  Central  R.  R.  Co.  7  Id. 
515,  520;  Seeley  v.  Garrison.  10  Abb.  Pr.  460,  4'J3;  Shaler  &  Hall  Quarry 
Co.  t).  Brewster,  Id.  464,  407;  G.liilan  v.  Spi-att,  3  Daly,  440;  Cooke  v. 
State  National  Bank,  1  Lans.  494 ;  qualified  on  appeal  in  52  N.  Y.  90 ; 
■compare  80  {above),  136  {below). 

104.  Exi)ressum  facit  cessare  taciturn. 

Brant  v.  Gelston,  2  Johns.  Cas.  384,  397;  Post  v.  Robertson,  1  Johns. 
•24,  31 ;  Beebe  r.  Bank  of  N.  Y.  Id.  529,  571 ;  Douglass  v.  Satterlee,  11  Id. 
16,  20 ;  Cross  v.  Jackson,  5  Hill,  478,  479;  Webber  v.  Shearman,  6  Id.  20, 
27  ;  Webber  v.  Shearman,  2  Den.  302,  307  ;  Adams  v.  Saratoga  &  Wash- 
ington R.  R.  Co.  11  Barb.  414,  439;  Mason  i.  Jones,  13  Id  401,  478; 
Spalding  v.  Hallenbeck,  30  Barb.  292,  290. 

105.  Extincto  snbjecto,  tollitur  adjimctum. 

Griswold  v.  Waddington,  16  Johns.  438,  492. 

106.  Extinctum  est  mandatum,  finita  voluntate. 

Williams  v.  Birbeck,  Hoffm.  359,  363. 

107.  Ex  turpi  causa  uon  oritur  actio. 

Thallhimerc.  Brinckerhoff, 20  Johns.  386,397;  Trovingert).  McBurney, 
5  Cow.  253.  256;  Pennington  ®.  Townsend,  7  Wend.  276,  280;  Rea  V 
Smith,  19  Id.  293,  295;  De  Groat  v.  Van  Diizer,  2U  Id.  390,  400;  State  v. 
City  of  Buffalo,  2  Hill,  43t,  437;  Ndlis  «.  Clark,  4  Id.  42+,  436;  Gray  v. 
Hook,  4  N.  Y.  449,  455;  Bell  v.  Leggctt,  7  N.  Y.  176,  179;  Thatcher  v. 
Morris,  11  N.  Y.  437,  438;  Tracy  D.Talmage,  14  N.  Y.  102,  ISO  ;  .Sedgwick 
V.  Stanton,  Id.  289,  201;  Maybee  v.  Sniffen,  10  N.  Y.  500,  502;  Leavitt  v. 
Blatchford,  5  Barb.  9,  21;  Nivcr  «.  Best,  10  Id.  309,  370;  La  Fargc  r. 
Uerter,  11  Id.  159,  167;  Mayor,  &c.  of  Auburn  v.  Draper,  23  Id.  425,  429; 

20 


306  LEGAL  MAXIMS  WITH 

Seneca  County  Bank  v.  Lamb,  26  Id.  595,  601 ;   Rudderow  v.  Huntingtoir, 
3  Sandf.  252,  256  ;  Menitt  v.  Millard,  3  Abb.  Ot.  App.  Dec.  291. 

108.  Ex  turpi  contractu  actio  noii  oritur. 

Devlin  v.  Bradv,  36  N.  Y.  531,  534;  Hartford  &  New  Haveu  R.  R.  Co. 
V.  N.  Y  &  New  Haven  R.  R.  Co.  3  Robt.  411,  416;  Bissell  v.  Michigan 
Southern  &  Northern  Indiana  R.  R.  Co.  22  N.  Y.  258,  272 ;  Otis  v.  Harri- 
son, 36  Barb.  210,  215. 

109.  Falsa  demoustratio  uon  nocet. 

Jackson  v.  Sill,  It  Johns,  201,  218;  Watervliet  Turnpike  Co.  v.  Mo- 
Kean,  6  Hill,  616,  619  ;  Cayuga  County  Bank  v.  Warden,  6  N.  Y.  19,  24; 
Burr  V.  Broadway  Ins  Co.  16"N.  Y.  267,  274  ;  Mason  v.  White,  11  Barb. 
173,  183;  McNnlty  v.  Prentice,  25  Id.  204,  209  ;  Pinckney  v.  Hagadorn,  1 
Duer,  89.  97;  Roman  Catholic  Orphan  Asylum  v.  Emmons,  3  Bradf.  144, 
149  ;  Judd  v.  O'Brien,  21  N.  Y.  186,  189. 

110.  Falsa  demonstratione  legatum  non  perimi. 

Roman  Catholic  Orphan  Asylum  v.  Emmons,  3  Bradf.  144,  149. 

111.  Falsus  in  uno,  falsus  in  omnibus. 

Beebe  v.  Bank  of  N.  Y.  1  Johns.  529,  542;  N.  Y.  Firemen  Ins.  Co.  v. 
De  Wolf,  2  Cow.  56,  68;  People  v.  Douglass,  4  Id.  26,  37;  Forsyth  v. 
Chirk.  3  Wend.  637,  643;  People  D.Davis,  15  Id.  602,  607;  People  v. 
Evans,  40  N.  Y.  1 ;  Henry  v.  Fowler,  3  Daly,  199;  Wilkins  v.  Earle,  44  N.. 
Y.  173;  rev'g  3  Robt.  352. 

112.  Fatuus  praesumitur  qui  in  proprio  nomine  erat. 

Van  Alst  v.  Hunter,  5  Johns.  Ch.  148,  161. 

113.  Favorabilia  in  lege  sunt  vita,  fiscus,  dos,  libertas. 

Harrison  v.  Peck,  56  Barb.  251,  257. 

114.  Feudum    sine   iuvestitura    nullo    modo    constitui 

potest. 

Jackson  v.  Demont,  8  Johns.  55,  58. 

115.  Fides  servanda. 

McCoy  V.  Artcher,  3  Barb.  323,  330 ;  Paul  v.  Hadley,  23  Id.  531,  524. 

116.  Fieri  non  debet,  sed  factum  valet. 

Yates  V.  Foot,  12  Johns.  Ill  ;  Denniston  v.  Cook,  Id.    376,    378  ;    Ni- 
chols V.  Ketcham,  19  Id.  84,  92. 

117.  Fortior    et    potentior    est    dispositio    legis    quam 

liominis. 

Kingsbury  v.  Williams,  53  Barb.  142,  149. 

118.  Fortior  est  custodia  legis  quam  hominis. 

Loring  v.  U.  S.  Vulcanized  Gutta  Percha  &  B.  Co.  36  Barb.  329,  331. 


REFERENCES  TO   LEGAL   DECISIONS.  307 

119.  Freight  is  the  mother  of  wages. 

Worth  V.  Mumford,  1  Hilt.  1,  17;  Dunnett  v.  Tomhagen,  3  Johns.  154, 
156  ;  Icard  v.  Goold,  11  Id.  279,  280;  Wetmore  v.  Henshaw,  12  Id.  324* 
333;  Daniels  v.  Atlantic  Mutual  Ins.  Co.  8  Bosw.  2G6,  278;  Jenkins  v. 
Wheeler,  4  Hobt.  575,  595;  affi'd  in  2  Abb.  Ct.  App.  Dec.  442;  Daniels 
V.  Atlantic  Mutual  Ins.  Co.  24  N.  Y.  447,  451 ;  s.  c.  8  Bosw.  2(56,  278. 

120.  Furiosiis  solo  furore  punitur. 

Freeman  v.  People,  4  Den.  9,  20;  Macfarland's  Trial.  8  Abb.  Pr.  N    S 
57,  92. 

121.  Furor  contrahi  matrimonium  non  sinit,  quia  con- 

sensu opus  est. 

Wightman  v.  Wightman,  4  Johns.  Ch.  343,  345. 

122.  Generalis  clausuhi  non  i^orrigitur  ad  ea  quae  antea 

specialiter  sunt  comprehensa. 

Munro  «.  Alaire,  2  Cai.  320,  327;  Ludlow  v.  Bowne,  1  Johns.  1,  15. 

123.  Haeres  est  pars  autecessoris. 

Sclioonmaker  v.  Sheeley,  3  Hill,  165,  167. 

124.  He  who  is  the  prior  in  time  is  stronger  in  right. 

Wilkes  V.  Harper,  2  Barb.  Ch.  338,  354;  Cherry  «.  Monroe,  Id.  618, 
619  ;  compare  257,  278  {below). 

125.  He  who  seeks  equity  must  do  equity. 

Tripp  V.  Cook,  26  Wend.  143,  160;  Biuen  v.  Hone,  2  Barb.  586,  587; 
Linden  v.  Hepburn,  3  Sandf.  668,  671;  s.  c.  5  How.  Pr.  188;  Beekman 
Ins.  Co.  V.  First  M.  E.  Church,  29  Barb.  658,  660;  Williams  r.  Fitzhugh, 
37  N.  Y.  444,  452;  Wheelock  v.  Tanner,  39  Id.  481,  502,  505;  Abernethy 
V.  Church  of  Puritans,  3  Daly,  1,5;  compare  84  (above). 

126.  He  that  doeth  iniquity  shall  not  have  equity. 

Church  of  Holy  Innocents  v.  Keech,  5  Bosw.  691,  695. 

127.  Husband  and  wife  are  one  person. 

Savage  v.  O'Neil,  42  Barb.  374,  379. 

128.  Id  certum  est  quod  certura  reddi  potest. 

Gates  V.  Graham.  12  Wend.  53,  56;  Ryerrs  r.  Wheeler,  22  Id.  148.  150; 
People  V.  Nevins,  1  Hill,  154,  158;  Ostrander  v.  Walter,  2  Id  329.  332; 
Smith  V.  Fyler,  Id.  648,  649;  People  v.  Stevens,  5  Id.  616,  624  ;  Olmsted 
c.  Loomis,  9  N.  Y.  423,  4'^4  ;  Van  Rensselaer  v.  Jor.es,  2  Barb.  643.  668; 
Hyland  v.  Staiford,  10  Id.  558,  565  ;  People  v.  Cavanagh,  2  Abl).  Pr.  84, 
88;  Troy  Citv  Bank  v.  Bowman,  19  Abb.  Pr.  18,  24;  s.  c.  43  Barb.  639, 
614  ;  Youngs  v.  Wilson,  27  N.  Y.  351,  353  ;  compare  46  {above),  333  {be- 
luio) . 


308  LEGAL  MAXIMS  WITH 

129.  Idem  semper  antecedenti  proximo  refertur. 

Stewart  v.  Stewart,  7  Johns.  Ch.  229,  248. 

130.  Id  quod  commune  est,  nostrum  esse  dicitur. 

Lawrence  v.  Sebor,  2  Cai.  203,  207. 

131.  If  an  affirmative  statute,  whicli  is  introductive  of  a 

new  law,  direct  a  thing  to  be  done  in  a  certain 
manner,  tbat  thing  shall  not,  even  although  there 
are  no  negative  words,  be  done  in  any  other  man- 
ner. 

Cook  V.  Kelley,  12  Abb.  Pr.  35,  36 ;  compare,  however,  Fairchild  v. 
Gwynne,  14  Id.  1*21;  16  Id.  23. 

132.  Ignorantia  facti  excusat,  ignorantia  juris  non  ex- 

cusat. 

Hamilton  v.  People,  57  Barb.  625,  633. 

133.  Ignorantia  juris  non  excusat. 

McCartee  v.  Teller,  8  Wend.  267,  284  ;  Moulton  v.  Bennett,  18  Id.  586, 
588;  Champlin  v.  Laytin,  6  Paige,  189,  195;  s.  c.  1  Edw.  467,  472;  Hunt- 
ley V.  Beecher,  30  Barb.  580,  586  ;  Fire  Department  v.  Williamson,  16  Abb. 
Pr.  402,  409  ;  Meyer  v.  Clark,  2  Daly,  497. 

134.  Ignorantia  legis  neminem  excusat. 

Merchants'  Bank  v.  Spalding,  12  Barb.  302.  308;  Tilton  v.  Nelson,  27 
Id.  595,  605  ;  Renardw.  Fiedler,  3  Duer,  318,  324. 

135.  Impotentia  excusat  legem. 

Jackson  i'.  Sellick,  8  Johns.  202,  208 ;  Jackson  i\  Johnson,  5  Cow.  74, 
103. 

136.  Inclusio  unius  est  exclusio  alterius. 

People  V.  Corlies,  1  Sandf.  228,  247;  compare  80,  103  (above). 

137.  Incolas  domicilium  facit. 

Arnold  v.  United  Ins.  Co.  1  Johns.  Cas.  363,  866. 

138.  In  eo  qui  testatur,  integritas  mentis,  non  corporis, 

exigenda  est. 

Delafield  v.  Parish,  5  N.  Y.  Surr.  1,  111. 

139.  In  equali  jure  melior  est  conditio  possidentis. 

risk  V.  Potter,  2  Abb.  Ct.  App.  Dec.  138. 


REFERENCES  TO   LEGAL   DECISIONS.  309 

140.  In  fictione  juris  semper  subsistit  tequitas. 

Michaels  v.  Shaw,  12  Wend.  587,  588;  Low  v.  Little,  17  Johns.  346, 
348;  Lane  v.  King,  8  Wend.  584,  586  ;  Morgan  v.  Varick,  Id.  587,  593; 
Edwards  v.  Fire  Ins.  &  Loan  Co.  31  Id.  467,  49G;  People  v.  Commission- 
ers of  Taxes,  23  N.  Y.  224,  228. 

141.  In  lisec  foedera  non  veni. 

Binsse  v.  Wood,  37  N.  Y.  523,  533 ;    Kingsbury  v.  Williams,  53  Barb. 

142.  152;  Jenkins  v.  Wheeler,  2  Abb.  Ct.  Amx  Dec,  442;  Grant  v.  Smith, 
46  N.  Y.  93,  96. 

142.  Iniquissima  pax  est  anteponenda  jnstissimo  bello. 

Eoot  v.  Stuyvesant,  18  Wend.  257,  305. 

143.  In  jure,  causa  proxima,  non  remota,  spectatur. 

Bumi3us  V.  Plainer,  1  Johns.  Ch.  213,  219;  Tilton  v.  Hamilton  Fire 
Ins.  Co.  1  Bosw.  367,  378;  compare  43  (aiove),  230  (Mow). 

144.  In  majore  summa  continetur  minor. 

Hubbard  v.  Chenango  Bank,  8  Cow.  88,  101. 

145.  In  obscuris  id  quod  minimum  est  spectamur. 

Safford  v.  Drew,  3  Duer,  627,  634. 

146.  In  odium  spoliatoris,  omnia  praesumuntur. 

Barrow  v.  Rhinelander,  3  Johns.  Ch.  614,  620;  Livingston  v.  Newkirk, 
Id.  312,  316. 

147.  In  pari  delicto,  potior  est  conditio  ijossidentis. 

Juhel  V.  Church,  2  Johns.  Cas.  333,  334;  Woodworth  v.  Janes,  Id. 
417,  423;  Vischer  v.  Yates,  11  Johns.  23,  30:  Nellis  v.  Clark,  4  Hill,  424, 
436 ;  Ford  v.  Harrington,  16  N.  Y.  285,  293. 

potior  est  conditio  defendentis. 

Vischer  v.  Yates,  11  Johns.  23,  26;  Perkins  v.  Savage,  15  Wend.  413, 
415  ;  Nellis  «.  Clark,  20  Id.  34,  38:  Schroeppel  -v.  Corning,  5  Den,  336, 
241;  Peck  v.  Burr,  10  N.  Y.  294,  297;  Tracy  v.  Talmadge,  14  N.  Y.  162, 
181,  216;  Meech  v.  Sloner,  19  N.  Y,  26,  2«;'  Swan  v.  Howard,  3  Edw.  287, 
289  ;  Bennett  v.  American  Art  Union,  5  Sandf.  G14,  631 ;  Ford  v.  Harring- 
ton. 16  N.  Y.  285,  290;  Leseuer  v.  Leseuer,  31  B:irb.  330,  333;  Sharp  v. 
Wright,  35  Id.  236,  238 ;  and  see  De  Gruff  v.  American  Linen  Thread  Co. 
21  N.  Y.  124,  128;  Ruckmau  v.  Pitcher,  20  Id.  9,  13;  compare  151,  380 
(belatc). 

148.  In  re  lupanari,  testes  lupanares  admittentur. 

Van  Epps  v.  Van  Epps,  6  Barb.  320,  324. 

149.  In  re  pari  potiorem  causam  esse  probibentis  constat. 

Griswold  r.  Waddington.  16  Johns.  438,  491. 


310  LEGAL  MAXIMS  WITH 

150.  Interest  reipublicae  ut  sit  finis  litium. 

Simson  v.  Hart,  14  Johns.  63,  73;  Russell  v.  Lvtle,  6  Wend.  390,  ?>91 ; 
Humbert  v.  Trinity  Church,  24  Id.  587,  61o;  White  r.  Mcrritt,  7  N.  Y. 
352,  355;  Stephens  v.  Vrooman,  18  Barb.  250,  255;  Birckhead  r.  Brown, 
5  Sandf.  134,  140;  Lott  «.  Swezey,  29  Barb.  87,  92;  Bellingers.  Cn.igue, 
31  Id.  534,  536;  Bumstead  v.  Read,  Id.  661,  G08;  Bolton  ».  Jacks,  6  Robt. 
166  ;  Williams  v.  Fitzhugh,  44  Barl).  321,  324  ;  Swift  v.  City  of  Poughkeep- 
sie,  37  N.  Y.  511,  514;  compare  101  (above). 

151.  Inter  partes  in  i)ari  delicto,  i)otior  est  conditio  de- 

fendentis. 

Freelovc  v.  Cole,  41  Barb.  318,  335;  and  see  147  {above),  380  (below). 

152.  Ira  furor  brevis  est. 

Beardsley  v.  Maynard,  4  Wend.  336,  355. 

153.  Ita  lex  scripta  est. 

Allen  V.  Cook,  26  Barb.  374.  380 ;  Pratt  v.  Huggins,  29  Barb.  277,  287 ; 
N.  Y.  &  N.  H.  R.  R.  Co.  v.  Schuyler,  34  N.  Y.  30,  73. 

154  Item  ipse  tutor  et  emptoris  et  venditoris  ofiicio  fungi 
non  potest. 

Gardner  v.  Ogden,  23  N.  Y.  327,  346. 

155.  It  is  for  the  interest  of  the   republic  that  there 

should  be  an  end  to  litigation. 

Binck  V.  Wood,  43  Barb.  315,  320  ;  and  see  101,  150  {alme). 

156.  Judex  non  reddat  plus  quam  quod  petens  ipse  re- 

quirat. 

Skinner  v.  Dayton,  19  .Johns.  513,  533. 

157.  Judicandum  est  legibus,  non  exemplis. 

Skinner  v.  Dayton  v.  Dayton,  19  Johns.  513,  541. 

158.  Judicium  a  non  suo  judice  datum  nuUius  est  mo- 

men  ti. 

Yates  V.  Lansing,  9  Johns.  395,  434. 

159.  Judicium  semper  pro  veritate  accipitur. 

Smith  V.  Weeks,  26  Barb.  463,  464;  compare  301,  353  (below.) 

160.  Judicium  redditur  in  invitum. 

Miller  v.  Smith,  10  Wend.  435,  441.  ' 

161.  Jurisprudentia    est  divinarum    atque    humanarum 

rerum  notitia. 

People  V.  Ruggles,  8  Johns.  335,  238. 


REFERENCES  TO   LEGAL  DECISIONS.  311 

162.  Jus  civile  est  quod  sibi  populus  constituit. 

Jackson  v.  Jackson,  1  Johns.  424,  426. 

163.  Jus  dicere,  non  jus  dare. 

Barry  v.  Mandell,  10  Johns.  363,  566;  and  see  Coster  v.  Lorillard,  14 
Wend.  386. 

164.  Jus  summum  saepe  summa  est  malitia. 

Wilson  V.  Hamilton,  9  Johns.  394,  441. 

165.  Legem  enim  contractus  dat. 

Allen  r.  Merchants'  Bank,  23  Wend.  215,  233 ;  compare  55  (above). 

166.  Leges  posteriores  priores  contrarias  abrogant. 

Barry  B.  Mandell,  10  Johns.  573,  586;  Columbian  Manuf.  Co.  v.  Yan- 
■derpoel,  4  Cow.  556,  557;  People  v.  Supervisors  of  Westchester,  12  Barb. 
446,  453;  Moore  v.  Westervelt,  3  Sandf.  762,  765;  see  174  {below). 

167.  Leges  vigilantibus  nou  dormientibus  subveniunt. 

Fanning  v.  Dunham,  5  Johns.  Ch.  122,  145  ;  compare  370  (below). 

168.  Legis  constructio  non  facit  iujuriam. 

Kellogg  V.  Slauson,  15  Barb.  56,  61. 

169.  Lex  neminem  cogit  ad  impossibilia. 

Schroeder  v.  Hudson  River  R.  R.  Co.  5  Duer,  55,  62. 

170.  Lex  nil  frustra  facit. 

Trustees  of  Huntington  v.  Nicoll,  3  Johns.  566,  598;  and  see  Jackson 
<j,  Adams,  7  Wend.  368. 

171.  Lex  non  cogit  ad  vana  seu  inutilia. 

Root  V.  Franklin,  3  Johns.  208,  210;  Trustees  of  Huntington  v.  Nicoll, 
Id.  566,  598;  People  v.  Supervisors  of  Greene,  12  Barb.  217,  222 ;  Loomis 
■c.  Tiflft,  16  Id.  5il,  544. 

172.  Lex  non  cogit  ad  vana  aut  impossibilia. 

Drake  v.  Thayer,  5  Robt.  694,  700. 

173.  Lex  plus  laudatur  quando  ratione  probatur. 

Steam  Navigation  Co.  v.  Weed,  17  Barb.  378,  384. 

174.  Lex  posterior  derogat  priori. 

Dry  Dock,  &c.  R.  R.  Co.  r.  Mayor,  &c.  of  New  York,  55  Barb.  298,  308; 
see  166  (above). 

175.  Liberum  est  cuique  apud  se  explorare  an  expediat 

sibi  consilium. 

Upton  V.  Vail,  6  Johns.  181,  184. 


313  LEGAL  MAXIMS  WITH 

17G.  Litcra  scripta  manet. 

Kent  V.  Manchester,  29  Barb.  G95,  601. 

177.  Locus\regit  actum. 

Moultrie  v.  Hunt,  23  N.  Y.  394,  418;  3  Bradf.  323,  349. 

178.  Lucrum  facere  ex  pupilli  tutela  tutor  non  debet. 

Manning  v.  Manning,  1  Johns.  Ch.  527,  535. 

171).  Mala  grammatica  non  vitiat  chartam. 

Cutter  V.  Dorghty,  7  Hill,  305,  316. 

180.  Malum  in  se. 

Eichardsou  v.  Crandall,  47  Barb.  335,  360. 

181.  Melior  est  conditio  defendentis. 

Nellis  V.  Clark,  20  Wend.  24,  34  ;  compare  254  {Mow). 

conditio  possidentis. 

Graves  v.  Delaplaine,  14  Johns.  146,  159;  McLaughlin  v.  Waite,  9  Cow. 
070,  674  ;  Ontario  Bank  v.  Worthington,  12  Wend.  593,  601  ;  compare  254 

{below). 

182.  Misera  est  servitus,  ubi  lex  est  vaga  aut  incerta. 

Yates  T.  Lansing,  9  Johns.  395,  427;  Nostrand  v.  Durland,  21  Barb.  478, 
481  ;  and  see  Hanlord  v.  Artcher,  4  Hill,  271,  323. 

183.  Mobilia  non  habent  situm. 

Holmes  v.  Rcmsen,  4  Johns.  Ch.  460,  472. 

184.  Mobilia  personam  sequuntur. 

People  V.  Commissioner  of  Taxes,  23  N.  Y.  224,  228. 

Immobilia  situm. 

Decouche  v.  Savetier,  3  Johns.  Ch.  190,  210. 

185.  Modus  et  conventio  vincunt  legem. 

Bank  of  Utica  v.  City  of  Utica,  4  Paige,  399,  401  ;  Dorr  v.  N.  J.  Stean* 
Navigation  Co.  4  Sandf.  186,  143;  Kneetle  v.  Nevvcomb,  23  N.  Y.  249, 
252  ;  Wells  v.  N.  Y.  Central  R.  R.  Co.  24  Id.  181,  191 ;  affi'g  26  Barb.  641 ; 
Lowry  v.  Inman,  46  K  Y.  119,  129. 

18G.  Mortis  momentum  est  ultimum  vitse  momentum.  ^ 

Terrill  v.  Public  Administrator,  4  Bradf.  245,  250. 

187.  Naturale  est  quidlibet  dissolvi  eo  modo  quo  ligatur.. 

Mitchell  V.  Hawlcy,  4  Den.  414,  417 ;  compare  202,  287,  355  (lelotc). 


REFERENCES  TO  LEGAL   DECISIONS.  313 

188.  Necessitas  non  babet  legem. 

People  V.  Dyckman,  34  How.  Pr.  223,  228. 

189.  Nemo  allegans  contraria  est  audiendus. 

Pelletreau  v.  Jackson,  11  Wend.  110,  117. 

190.  Nemo  allegans  turpitudinem  suam  est  audiendus. 

Baker®.  Arnold,  1  Cai.  258,369;  Winton  v.  Saidler,  3  Johns.  Cas.  185, 
188;  Powell  v.  Waters,  17  Johns.  176,  180;  Bank  of  Utica  v.  Hillard,  5 
Cow.  153,  IGO;  Hawks  v.  Mun«rer,  3  Hill,  200.  201 ;  People  v.  Burden,  9 
Barb.  467,  470  ;  compare  13  (above),  193,  209  (Mow). 

191.  Nemo  debet  bis  vexari  pro  eadem  causa. 

Manny  v.  Harris,  2  Johns.  24, 27  ;  Felter  v.  Miilliner,  Id.  181, 182 ;  Hoyt 
v.  Gelston,  13  Id.  139, 153  ;  Wood  v.  Jackson,  8  Wend.  10,  38;  Sturtevant 
V.  Watcrbury,  2  Hall,  449,  454  ;  People  v.  Mercein.  3  Hill,  399,  420;  Miller 
V.  Manice,  6  Id.  114,  133  ;  People  v.  Judges  of  Dutchess  Oyer  and  T.  2 
Barb.  283,  285  ;  Hatch  r.  Benton,  6  Barb.  28,  32;  Klock  r.  People,  3  Park. 
Cr.  G76,  682  ;  Kuckler  v.  People,  5  Park.  Cr.  212;  compare  210  (bdow). 

192.  Nemo  debet  credi  allegans  suam  turpitudinem. 

American  Life  Ins.  &  Trust  Co.  v.  Bayard,  5  N.  Y.  Leg.  Obs.  13,  16  ; 
compare  13,  190  (above),  209  (beloic). 

193.  Nemo  debet  in  communione  invitus  teneri. 

Selden  v.  Vermilya,  2  Sandf.  568,  593  ;  and  see  United  Ins.  Co.  v.  Scott, 
1  Johns.  106,  114. 

194.  Nemo  debet  locupletari  ex  alterius  incommodo. 

Taylor  v.  Baldwin,  10  Barb.  636,  633;  compare  228  (below). 

195.  Nemo  est  hseres  viventis. 

Sleight  V.  Read,  9  How.  Pr.  278,  281 ;  Barnes  v.  Ilusom,  60  Barb.  598. 

19G.  Nemo  ex  consilio  obligatiir. 

Upton  V.  Vail,  6  Johns.  181,  184. 

197..  Nemo  ex  sociis  plus  parte  sua  potest  alienare,  etsi 
totorum  bonorum  soeii  sint. 

Pettee  v.  Orser,  6  Bosw.  123,  132. 

198.  Nemo  plus  juris  in  alium  transferre  potest,  (piam 
ipse  babet. 

Grout  V.  Townsend,  2  Den.  336.  339  ;  Cook  r.  Boal,  1  Bosw  497,  600; 
Rawls  V.  Deshler.  4  Abb.  Ct.  App.  Dec.  12;  Holbrook  i\  Vose.  6  Bosw.  76, 
107;  Roberts  v.  Dillon,  3  Dalv,  50;  Newton  v.  Porter,  5  Lans.  416;  com- 
pare 15  (above),  207,  276  (below). 


314  LEGAL  MAXIMS  WITH 

199.  ISTemo  potest  in  rem  snam  aiictor  esse. 

Gardner  v.  Ogden,  23  N.  Y.  327,  34G. 

200.  Kemo  x^otest  miitare  consilium  suam  in  alterius  in- 

juriam. 

Dash  V.  Van  Kleek,  7  Jolms.  477,  50i  ;  Bonati  v.  Welsch,  34  N.  Y.  157, 
163. 

201.  Nemo  tenetur  seipsnm  prodere. 

Hendrickson  v.  People,  10  N.  Y.  10,  33;  Thomas?).  Ilarrop,  7  How.  Pr. 
57,  58. 

202.  Nihil  tam  naturale,  quam  quidlibet  dissolvi  eo  modo 

quo  ligatur. 

Crosswell  v.  Barnes,  9  Johns.  287,  290 ;    Niles  r.  Totman,  3  Barb.  594, 
596;  compare  187  (above),  287,  355  (below). 

203.  Nil  agit  exemplum,  litem  quod  lite  resolvit. 

Hatch  V.  Mann,  15  Wend.  44,  49. 

204.  Nil  facit  error  nomiuis,  cum  de  corpore  constat. 

Langdon  v.  Astor,  3  Duer,  477,  610. 

205.  Nil  frustra. 

Newell  v.  Wheeler,  4  Robt.  347,  255. 

206.  No  man  can  be  a  judge  of  his  own  cause. 

Matter  of  the  Southern  Boulevard,  3  Abb.  Pr.  N.  S.  447,  449. 

207.  No  man  can  transfer  a  better  title  than  he  has  him- 

self. 

Saltus  V.  Everett.  20  Wend.  207,  275;    Stevens  v.   Hyde,  33  Barb.  171, 
178;  compare  15,  198  {above),  276  (below). 

208.  No  man  ought  to  be  affected  in  his  rights  by  the 

judgment  or  decree  of  any  court,  without  an  op- 
portunity of  being  previously  heard  in  his  own 
defense. 

Hickock  0.  Scribner,  3  Johns.  Cas.  311,  315. 

209.  No  man  shall  be  heard  to  allege  his  own  turpitude. 

Powell  r.  Waters,  8  Cow.  669,  693;  compare  13,  ICO,  192  (above). 

210.  No  man  shall  be  twice  arrested  for  the  same  cause. 

Wright  V.  Ritterman,  4  Robt.  704,  711  ;  s.  c.  1  Abb.  Pr.  N.  S.  428,431. 


REFERENCES  TO   LEGAL   DECISIONS.  315 

211.  No  man  shall  be  twice  put  in  jeopardy  for  the  same 

ofiense. 

Guenther  v.  People,  24  N.  Y.  100,  103  ;  Canter  v.  People,  5  Abb.  Pr.  N. 
S.  21,  27. 

212.  No  man  shall  take  advantage  of  his  own  wrong. 

'    Hard  v.  Seeley,  47  Barb.  428,  434;  compare  346  {below). 

213.  Nomina  infixa  sunt  ejus  ossibus, — debita  sequuntur 

personam  debitoris. 

Sherwood  v.  Judd,  3  Bradf.  419,  423;  compare  67  (above). 

214.  No  one  can  be  permitted  to  allege  ignorance  of  the 

law. 

Thomas  v.  Murray,  34  Barb.  157,  170. 

215.  No  person,  by  his  own  transgression,  can  create  a 

cause  of  action  in  his  own  favor,  against  another. 

Brigg3  V.  Easterly,  62  Barb.  51. 

216.  No  person  shall  be  twice  vexed  for  the  same  cause. 

Collyer  v.  Collins,  17  Abb.  Pr.  467,  473  ;  People  v.  Kelly,  1  Abb.  Pr. 
N.  S.  432,  436;  Lorillard  Fire  Ins.  Co.  v.  Meshural,  7  Robt.  308;  compare 
191  (above). 

217.  Non  decit  homines  dedere  causa  non  cognita. 

Matter  of  Wcsliburn,  4  Johns.  Ch.  106,  114^ 

218.  Non  omne  quod  licet  honestum  est. 

Howell  V.  Baker,  4  Johns.  Ch.  118,  121. 

219.  Non  quieta  movere. 

Green  v.  Hudson  River  R.  R.  Co.  2  Abb.  Ct.  App.  Dec.  377;  compare 
335  (below). 

220.  Non  remota  causa  sed  jDroxima  spectatur. 

Gelston  v.  Hoyt,  13  Johns.  581,  580;  compare  43,  143  (above). 

221.  Noscitur  a  sociis. 

Corning  v.  McCnllough,  1  N.  Y.  47,  69;  St.  John  v.  American  Mutual 
Fire  &  Marine  Ins.  Co.  11  N.  Y.  516,  529;  Biicklev  r.  Buckley,  11  Barb. 
43,  53;  Eilicottville,  &c.  Plank  Road  Co.  v.  Bullalo.  &c.  II.  R.  Co.  20  Id. 
644,  650  ;  Chegary  v.  Jenkins,  3  Sandf.  409,  413  ;  Aikin  v.  Wasson,  24  N. 
Y  483,  48i  ;  Penny  v.  Black,  6  Bosw.  50,  56;  Coffin  v.  Reynolds,  37  N.  Y. 
640,  644. 


316  LEGAL  MAXIMS  WITH 

222.  No  statute  is  to  have  a  retrospect  beyond  the  time 

of  its  commencement. 

People  ex  rel.  Peaked.  Supervisors  of  Columbia,  43  N.  Y.  130. 

223.  Nothing  in  action,  entry,  or  re-entry,  can  be  granted 

over. 

Van  Rensselaer  r.  Ball,  19  N.  Y.  100,  103. 

224.  Nova  constitutio  futuris  formam  imponere  debet, 

non  piaeteritis. 

Dash  V.  Van  Kleek,  7  Johns.  477,  485,  495;  Butler  v.  Palmer,  1  Hill, 
324,  335;  Lawrence  v.  Miller,  2  N.  Y.  245,  251. 

225.  Novum  judicium  non  dat  jus  novum,  sed  declarat 

antiquum. 

Fry  V.  Bennett,  4  Duer,  247,  268. 

22G.  Nullum  matrimonium,  ibi  nulla  dos. 

Wait  V.  Wait,  4  Barb.  192,  194;  compare  354  (Mow). 

227.  Nullum  tempus  occurit  regi. 

Peoples.  Clarke,  10  Barb.  120,  139,  144;  People  v.  Gilbert,  18  Johns. 

227.  228 ;  Greer  v.  Mayor,  &c.  of  N.  Y.  4  Robt.  675,  680  ;  s.  c.  1  Abb.  Pr. 
N.  S.  206,  211. 

228.  Nullus  commodum  capere  i}otest  de  injuria  sua  ijro- 

pria. 

Safford  v.  Wyckoff,  4  Hill,  442,  457  ;  compare  191  (alove). 

229.  Nullus  videtur  dolo  facere  qui  jure  suo  utitur. 

American  Ins.  Co.  v.  Griswolcl,  14  Wend.  399,  492. 

230.  Nuptias  non  concubitas  sed  consensus  facit. 

Jackson  v.  Winne,  7  Wend.  47  ;  see  52  (above). 

231.  Odiosa  et  inhonesta  non  sunt  in  lege  prsesumenda. 

Jackson  v.  Miller,  6  Wend.  228,  231 ;  Nichols  v.  Pinner,  18  N.  Y.  295, 
300. 

232.  Omne  crimen  ebrietas  incendit  et  detegit. 

People  V.  Robinson,  2  Park.  Cr.  235,  304. 

233.  Omne  mnjus  in  se  coutinet  minus. 

Reynolds  v.  Orvis.  7  Cow.  269,  272;  Hubbard  v.  Chenango  Bank,  8  Id. 
88,  101;  Williams  v.  Woodard.  2  Wend.  487,  492;  Farrington  v.  Morgan, 
20  Id.  207,  208  ;  compare  320  (beloio). 


REFERENCES  TO  LEGAL  DECISIONS.  317 

234.  Omne  majus  in  se  minus  complectitur. 

Kip  V.  Brigham,  6  Johns.  149,  157. 

235.  Omne  principale  trabit  ad  se  accessorium. 

Green  v.  Hart,  1  Johns.  580,  589  ;  compare  1  (above), 

236.  Omnia  esse  rite  acta. 

Humphrey's  Estate,  1  Tuck.  142. 

237.  Omnia  praesumuntnr  recte  et  solenniter  esse  acta. 

Butler  V.  Benson.  1  Barb.  526,  528;  Hill  w.  Draper,  10  Id.  454,467; 
Plant  V.  Long  Island  R.  II.  Co.  Id.  26,  30;  and  see  Tibbets  v.  Dowd,  23 
Wend.  379,  396;  French  v.  Willet,  4  Bosw.  649,  652;  and  see  Schauber  v. 
Jackson,  2  Wend.  13,  30;  Doe  v.  Butler,  3  Id.  149. 

donee  probetur  in  contrarium. 

People  V.  Carpenter,  24  N.  Y.  88,  92  ;  People  ex  rel.  Kennedy  v.  Com- 
missioner of  Taxes,  35  N.  Y.  423,  431. 

238.  Omnia  i^raesumuntnr  legitime  facta,  donee  probetur 

in  contrarium. 

Hart  V.  Seixas,  21  Wend.  40,  49 ;  Judah  c.  Stagg,  24  Id.  238,  239 ; 
Smith  V.  Heimer,  7  Barb.  416,  422. 

239.  Omnia  i)r8esumuntur  in  odium  spoliatoris. 

Livingston  v.  Newkii-k,  3  Johns.  Ch.  312,  310  ;  Barrow  ?).  Rhinelander, 
Id.  614,  620. 

240.  Omnia  praisumuntur  contra  spoliatorem. 

Searles  v.  Cronk,  38  How.  Pr.  320. 

241.  Omnis  ratibabitio  mandato  aequiparatur. 

Armstrong  v.  Gilchrist,  2  .Tohns.  Cas.  424,  431 ;  Stein  back  r.  Rhine- 
lander,  3  Id.  209,  281;  Livingston  v.  Gibbons,  5  Johns.  Ch.  250,  250; 
compare  242,  290,  291  (below). 

242.  Omnis  ratibabitio  retrotrabitur,  et  mandato  priori 

aequii»aratur. 

Davis  V.  Shields,  24  Wend.  322,  325 ;  Corning  v.  Southland,  3  Hill, 
552,550;  United  States  v.  Wyngall.  5  Id.  16,  21:  Green  v.  Clark,  5  Den. 
497,503;  Lansing  i).  CroswcU,  4  Paige,  519,  524  ;  Lady  Superior  y.  Mc- 
Namara,  3  Barb.  Ch.  375,  378 ;  Robinson  v.  United  Ins.  Co.  1  Johns.  592, 
599  ;  Altenius  r.  Mayor,  6  Duer.  446;  Garvey  «.  Jarvis,  46  N.  Y.  310,  317; 
compare  241  (above),  "^QO,  291  (below). 

243.  Once  a  mortgage  always  a  mortgage. 

Clark  V.  Ileniy,  2  Cow.  324,  332;  Boll  v.  Mayor,  &c.  of  N.  Y.  10  Paige, 
49,  50;  Romsen  ».  Hay,  2  Edw.  5:^5,  542;  Burns  v.  Ncvins,  27  Barb.  493, 
503;  Whitney  v.  Townsend,  2  Lans.  249,  260. 


318  LEGAL  MAXIMS  WITH 

*244.  Optimns  interpres  reriim  usus. 

Livingston  r.  .Ten  Broeck,  16  Johns.  14,  23  ;  compare  64  {above.) 

245.  Optimns  leguin  interpres  consuetude. 

Belmont  v.  Erie  Railw.  Co.  53  Barb.  637,  674. 

24G.  Parties  are  presumed  to  know  the  law  upon  the  un- 
disputed facts  of  their  case. 

Curtis  V.  Brooks,  37  Barb.  476,  479. 

247.  Partus  sequitur  patrem. 

Ludlam  v.  Ludlam,  31  Barb.  486.  497,  501,  503. 

248.  Parum  cavet  natura. 

Vandenheuvel  v.  United  Ins.  Co.  2  Johns.  Cas.  127,  166. 

249.  Pater  est  quern  nuptiae  demonstrant. 

Sweet  V.  Jacocks,  6  Paige,  355,  363 ;  Van  Aernam  v.  Van  Aernam,  1 
Barb.  Cb.  375,  377. 

250.  Pendente  lite  nihil  innovetur. 

Tzeitur  v.  Bowman,  6  Barb.  133,  138 ;  Murray  v.  Lylburn,  2  Johns.  Ch. 
441,  445;  compare  22  {uluve). 

251.  Personae  vice  fungitur  municipium  et  decuria. 

Warner  v.  Beers,  23  Wend.  103,  144. 

252.  Poena  potest  tolli,  culpa  perennis  erit. 

Hougbtaling  v.  Kelderhouse,  1  Park.  Cr.  241,  242. 

253.  Ponderantur  testes,  non  numerantur. 

Bakeman  ».  Rose,  14  Wend.  105,  109  ;  compare  832,  386  (behw). 

254.  Potior  est  conditio  defendentis. 

Cullum  r.  GourLiy,  8  Johns.  147;  Wheaton  v.  Hib')ard,20  Id.  290,  293; 
Nellis  T.  Clark,  4  Hill,  424.  426;  Candee  v.  Lord,  2  N.  Y.  269,  376;  Har- 
mony V.  Bincrhara,  11  N.  Y.  99,  111  ;  Tracv  v.  Talmage,  14  N.  Y.  162. 182; 
Dewitt  V.  Brisbane,  16  N.  Y.  508,  513;  Palmer  v.  Lord,  6  Johns.  Ch.  95, 
101;  Likev.  Thompson  9  Barb.  315.  316;  Niver  v.  Best,  10  Id.  369,  370; 
Stewart  v.  Smithson,  1  Hilt.  119,  121 ;  Parish  v.  Wheeler,  23  N.  Y.  494, 
508;  compare  181  (alove). 

conditio  possidentis. 

Jackson  v.  Richmond,  4  Johns.  483,  484;  Vischer  v.  Yates,  11  Id.  23, 
27  ;  Ramsdell  v.  Morgan,  16  Wend.  574,  576  ;  Morgan  v.  Gofif,  4  Barb.  524, 
527  ;  Farmers'  Loan  &  Trust  Co.  v.  Carroll,  5  Id.  613,  661;  Mayor,  &c.  of 
Auburn  v.  Draper,  23  Id.  435,  429;  compare  181  (above). 


REFERENCES  TO   LEGAL  DECISIONS.  319 

255.  Praescriptio  et  executio  non  pertinent  ad  valorem 

contractus,  sed  ad  temijus  et  modum  actionis  in- 
stituendae. 

Decoucbe  v.  Savetier,  3  Johns.  Ch.  190,  219. 

256.  Prsesumptio  ex  eo  quod  plerumque  fit. 

Post  V.  Pearsall,  22  Wend.  425.  475.  * 

257.  Prior  est  tempore,  potior  est  jure. 

Weaver  v.  Toogood,  1  Barb.  238,  241 ;  compare  124  (above),  278  (below). 

258.  Proles  sequitnr  sortem  jiaternam. 

Lynch  v.  Clarke,  1  Saudf.  Ch.  583,  6G0. 

259.  Qusedam  personoe  sni  juris  sunt,  quaedam  alicuo  juri 

subjectae. 

Mangam  v.  Brooklyn  R,  R.  Co.  38  N.  Y.  455,  459. 

200.  Quae  non  valeaut  sin<^ula,  juncta  juvant. 

Breasted  v.  Farmers'  Loan  &  Trust  Co.  8  N.  Y.  299,  305. 

2G1.  Quae  singula  non  prosunt,  juncta  juvant. 

Hendricks  v.  Robinson,  2  Johns.  Ch.  283,  301;  Ayleswortli  v.  Brown, 
10  Barb.  167,  171. 

202.  Quando  aliquid  conceditur,  conceditur  id  sine  quo 

illud  fieri  non  possit. 

Sterricker  v.  Dickinson,  9  Barb.  516,  518;    Troup  c.  Hurlbut,  10  Id. 
354,  359. 

203.  Quando  aliquid  proLibetur  fieri  ex  directo,  probibe- 

tur  et  per  obliquum. 

Livingston  v.  Stickles,  7  Hill,  253,  258. 

204.  Quando  aliquid  proliibctur,  x>robibetur  et  omne  per 

quod  dcvenetur  ad  illud. 

Livingston  v.  Harris,  11  Wend.  329,  339. 

205.  Quando  lex  aliquid  alieni  concedit,  conceditur  et  id 

sine  qua  res  ipsa  esse  non  x>otest. 

People  V.  Hicks,  15  Barb.  153,  160. 

200.  Quando  plus  fit  quam  fieri  debet,  videtur  ctiam  il- 
lud fieri  quod  faciendum  est. 

Hubbard  v.  Chenango  Bank,  8  Cow.  88. 


820  LEGAL  MAXLMS  WITH 

2G7.  Quando  quod  ago  iion  valeat  ut  ago,  valeat  quantum 
valere  potest. 

Jackson  v.  Blodget,  16  Johns.  172,  178;  Vander  Volgen  «.  Yates,  3 
Barb.  Ch.  242,  261. 

268.  Quatenus  sine  prsejudicio  indulgentium  fieri  i)otest. 

Holmes  v.  Remsen*  4  Johns.  Ch.  460,  477 ;  Abraham  v.  Plestoro,  3 
Wend.  539,  550. 

269.  Quicquid  plantatur  solo,  solo  cedit. 

King  V.  Wilcomb,  7  Barb.  263,  266  ;  Buckley  v.  Buckley,  11  Id.  43,  54; 
Beardsley  v.  Ontario  Bank,  31  Barb.  619,  630. 

270.  Quicquid  solvitur,  solvitur  secundam  modum  sol- 

veutis. 

Stone  V.  Seymour,  15  "Wend.  19,  24. 

271.  Qui  facit  per  alium  facit  per  se. 

Porter  v.  Cummings,  7  Wend.  172,  174;  Lawrence  v.  Taylor,  5  Hill, 
107,  114  ;  Miller  v.  Auburn  &  Syracuse  R.  R.  Co.  6  Id.  61,  65;  Miller  v. 
Manice,  Id.  114,  120;  Medical  Institution  v.  Patterson,  1  Den.  61,  68; 
Mather  v.  Perry,  2  Id.  163,  163;  People  v.  Adams,  3  Id.  190,  208;  Blake 
t).  Ferris,  5  N.  Y.  48,  53 ;  City  of  Buffalo  v.  Halloway,  7  N.  Y.  493,  496 ; 
Whitbeck  v.  Patterson,  10  Barb.  608,  611  ;  Seymour  v.  Marvin,  11  Id.  80, 
89;  Ruckman  v.  Pitcher,  13  Id.  556.  560;  Winchell  v.  Bowman,  21  Id. 
448,  453 ;  Conant  v.  Van  Shaick,  24  Id.  87,  99 ;  Cook  v.  Litchfield,  5 
Sandf  330,  338 ;  Weyant  t\  N.  Y.  &  Harlem  R.  R.  Co.  3  Duer,  360 ;  Dela- 
field  V.  Parish,  25  N.  Y.  9.  35;  affi'g  5  N.  Y.  Surr.  1,  130,  149;  42  Barb. 
274-  Wixson  v.  People,  5  Park.  Cr.  119;  Rose  v.  United  States  Telegraph 
Co.  3  Abb.  Pr.  N.  S.  408,  411  ;  White  v.  Calder,  35  N.  Y.  183,  186;  Tyler 
t).  Gardiner,  35  N.  Y.  559,  589;  Condit  v.  Baldwin,  21  N.  Y.  219,  223; 
Ballard  v.  Webster,  9  Abb.  Pr.  404,  410 ;  Reiuhard  v.  Mayor,  &c.  of  N.Y. 
2  Daly,  243,  249 ;  Lee  v.  Village  of  Sandy  Hill,  4U  N.  Y.  442. 

272.  Qui  haeret  in  litera  haeret  in  cortice. 

Jackson  v.  Housel,  17  Johns.  281,  284;  Watervliet  Turnpike  Co.  v.  Mc- 
Kean,  6  Hill,  616,  630-  Wadswoith  v.  Thomas,  7  Barb.  445,  449  ;    Ayles- 
worth  V.  Brown,  10  Id.  167;  Langdon  v.  Astor,  3  Duer,  477,  601  ;  Leavitt 
V.  Fisher,  4  LI.  1,  23;    Tracy  v.  Troy  &  Boston  R.  R.  Co.  38  N.  Y.  433,  ^ 
437. 

273.  Qui  jussu  judicis  aliquod  fecerit,  non  videtur  dolo 

malo  fecisse,  quia  parere  necesse  est. 

Yates  2).  Lansing,  9  Johns.  395,  434. 

274.  Quilibet  potest  renunciare  juri  pro  se  introducto. 

Atkins  V.  Kinman,  20  Wend.  241,  248;  People  v.  Rathbim,  21  Id.  509. 
543;  Manu  v.  Herkimer  County  Mutual  Ins.  Co\  4  Hill,  187,  192  ;  United 
States  V.  Wyngall,  5  Id.  16,  20;  Baker  v.  Braman,  6  Id.  47.  48;  People  o. 
Ransom,  2  N.  Y.  490,  493 ;  Stephens  v.  People,  19  N.  Y.  549,  565 ;  People 


REFERENCES  TO  LEGAL  DECISIONS.  321 

T.  Cancemi,  7  Abb.  Pr.  271,  290;  Wells  v.  N,  Y.  Central  R.  R.  Co.  24  N.  Y. 
181,  194  ;    affi'g  Welles  v.  N.  Y.  Central  R.  R.  Co.  26  Barb.  641 ;    compare 

24,  25  (adove),  275,  282  (below). 

275.  Qnilibet  renunciare  potest  beneficium  juris  pro  se 

introductum. 

People  v.  Van  Rensselaer,  9  N.  Y.  291,  333 ;  compare  24,  25,  274  (aioif), 
282  {below), 

276.  Qui  non  habet,  ille  non  dat. 

Jackson  v.  Bradford,  4  Wend.  619,  623 ;  compare  15, 198,  207  (above). 

277.  Qui  potest  et  debet  vetare,  et  non  vetat,  jubet. 

Wheeler  v.  Gilsey,  35  How.  Pr.  139,  148  ;  Wendell  v.  Van  Rensselaer,  1 
Johns.  Ch.  344,  354. 

278.  Qui  prior  est  tempore,  potior  est  jure. 

Embree  v.  Ilanna,  5  Johns.  101,  103 ;  Lynch  v.  Utica  Ins.  Co.  18  Wend. 
236,  253,  2?6 :  Muir  i.  Schenck,  3  Hill,  228,  230 ;  Berry  v.  Mutual  Ins.  Co. 
2  Johns.  Ch.  603,  608  ;  Hertell  v.  Bogert,  9  Paige,  52,  60;  Atlantic  Ins. 
<Co.  V.  Storrow,  1  Edw.  621,  623;  Poillon  v.  Martin,  1  Sandf.  Ch.  569,  578; 
Weaver  v.  Toogood,  1  Barb.  238,  241  ;  Watsou  v.  Le  Row,  6  Id.  481,  485  ; 
Truscott  V.  King.  Id.  346,  351;  Seymour  v.  Wilson,  16  Id.  294,  299  ;  Bush 
».  Lathrop,  22  N.  Y.  535,  546  ;  Leggett  v.  Bank  of  Sing  Sing.  24  Id.  283, 
295;  Booth  v.  Bunce,  Id.  592,  595;  Booth  v.  Bunce,  33  N.  Y.  139,  157  ; 
Reeves  v.  Kimball,  40  N.  Y.  299 ;  compare  124,  257  {aboee). 

279.  Qui  s'excuse  s'accuse. 

Stephens  v.  People,  19  N.  Y.  549,  569. 

280.  Qui  sentit  commodum  sentire  debet  et  onus. 

Hendricks  v.  Judah,  2  Cai.  25,  28  ;    United  Ins.   Co.   v.  Robinson,  Id. 

280.  288;  Matter  of  Mayor,  &c.  of  N.  Y.  11  Johns.  77,  80  ;  Bartlett  v. 
Crozier,  17  Id.  439,  453;  Frost  v.  Saratoga  Mutual  lus.  Co.  5  Den.  154, 158; 
Paine  v.  Bonney,  6  Abb.  Pr.  99,  106. 

281.  Qui  se  scripsit  hseredera. 

Delafield  v.  Parish,  25  N.  Y.  9,  35;  affi'g  5  N.  Y.  Surr.  1,  130,  149; 
Julke  V.  Adam,  5  N.  Y.  Surr.  454,  461  ;  Nexsen  v.  Nexsen,  3  Abb.  Ct.  App. 
Dec.  360  ;  Tyler  v.  Gardiner,  35  N.  Y.  559,  589. 

282.  Quisquis  potest  renunciare  jure  x)ro  se  introducto. 

Jackson  v.  Given,  8  Johns.  137,  140;  French  v.  ShotwcU,  5  Johns.  Ch. 
555,  566  ;  Ellis  v.  Craig,  7  Id.  710 ;  Langdon  v.  Astor,  3  Duer,  477,  582  ; 
compare  24,  25,  274,  275  (aboie). 

283.  Qui  tacet  consentire  vidctur. 

Beebe  v.  Bank  of  N.  Y.  1  Johns.  529,  567 ;  Lawrence  v.  Houghton,  5 
Id.  129,  131  ;  Wendell  v.  Van  Rensselaer,  1  Johns.  Ch.  314,  354;"^  Jewett 
D.  Banning,  23  Barb.  13,  16;  McEaciiron  r.  liindlcs,  34  Barb.  301,  308; 
McKee  v.  People,  36  N.  Y.  113,  116;  compare  317  (below). 

21 


322  LEGAL  MAXIMS  WITH 

284.  Quociimque  modo  velit,  quocumque  modo  possit. 

Clason  V.  Bailey,  14  Johns.  484,  492. 

285.  Quod  alias  bonum  et  justnm  est,  si  per  vim  vel 

fraudem  petatur,  malum  et  injustum  efficitur. 

Mussina  v.  Belden,  6  Abb.  Pr.  165,  176. 

280.  Quod  noil  apparet  non  est. 

Yates  v.  People,  6  Johns.  337,  505. 

287.  Quodque  dissolvitur  eodem  ligamine  quo  ligatur. 

Mitchell  V.   Hawley,  4  Den.  414,  418 ;    compare  187,  202  (above),  356 
(below). 

288.  Quod  sub  certa  forma  concessum  vel  reservatum 

est,  uou  trahitur  ad  valorem  vel  compensatiouem. 

Exp.  Miller,  2  Hill,  418,  423. 

289.  Quoties  in  verbis  nulla  est  ambiguitas,  ibi   nulla 

expositio  contra  verba  expressa  fienda  est. 

Watts  V.  Coffin,  11  Johns.  495,  499. 

290.  Ratibabitio  i)riori  mandato  sequiparatur. 

Palmer  v.  Yates,   3  Sandf.  137,  151 ;    compare   241,  242  (above),  291 
(lelow). 

291.  Eatihabitio  retrotrabitur  et  mandato  aequiparatur. 

Skinner  v.  Dayton,  19  Johns.  513,  544  ;  compare  241,  242,  290  (above). 

292.  Eatio  est,  quia  statutum  intelligit  semper  disponere 

de  contractibus  factis  intra,  et  non  extra  terri- 
torium  suum. 

Eitchie  v.  Garrison,  10  Abb.  Pr.  246,  253. 

293.  Eatio  legis  est  anima  legis. 

Richards  v.  Warring,  39  Barb.  42,  55. 

294.  Eatione  cessante,  lex  ipsa  cessat. 

People  V.  Bennett,  37  N.  Y.  117,  120. 

295.  Eeddendo  singula  singulis. 

fitaats  V.  Hudson  River  R.  R.  Co.  4  Abb.  Ct.  App.  Dec.  287. 

29G.  Eelatio  est  Actio  juris. 

Jackson  v.  Davenport,  20  Johns.  537,  551. 


REFERENCES  TO  LSGAL  DECISIONS.  323 

297.  Eepellitur  exceptione  cedendaruin  actionum. 

Cheesebrough  v.  Millard,  1  Johns.  Ch.  409,  414. 

298.  Ees  adjudicata. 

Snyder  v.  Trumbour,  38  N.  Y.  355.  361 ;  Angel  v.  Hollister,  Id.  378, 
885;  Matter  of  Andriot,  2  Daly,  28;  Hyatt  v.  Bates,  40  N.  Y.  1G4;  affi'g 
35  Barb.  308. 

299.  Res  bona  fide  vendita,  propter  minimam  causam  in- 

empta  fieri  noii  debet. 

Mastertou  v.  Beers,  6  Robt.  363,  388. 

300.  Res  inter  alios  acta. 

Mosher  v.  Hotchkis^,  3  Abb.  Ct.  App.  Dec.  326  ;  Rawls  v.  Deshler,  4 
Abb.  Ct.  App.  Dec.  12;  Sweet  v.  Barney,  23  N.  Y.  335,  311. 

aliis  nee  prodest  nee  nocet. 

Gelston  v.  Iloyt,  13  Johns.  561,  581. 

301.  Res  judicata  pro  veritate  accipitur. 

Goix  V.  Low,  1  Johns.  Cas.  341,  346 ;  Smith  v.  Lewis,  3  Johns.  147, 
168;  compare  159  (ciboce),  353  (below). 

302.  Res  perit  domino. 

Ilasbrouck  v.  Childs,  3  Bosw.  105,  117. 

303.  Res  propria  est  quae  communis  non  est. 

Le  Breton  v.  Miles,  8  Paige,  261,  270. 

304.  Respondeat  sui)erior. 

Allen  V  Merchants'  Bank,  22  Wend.  215,  231;  Bailey  v.  Mayor,  &c.  of 
N.  Y.  3  Hill,  531,  538;  Dennv  v.  Manhittan  Co.  2  Den.  115,  US;  Roch- 
ester White  Lead  Co.  v.  City  of  Rochester,  3  N.  Y.  433,  468;  Blake  v. 
Ferris,  5  N.  Y.  48,  53 ;  Lloyd  v.  M  lyor,  &c.  of  N.  Y.  Id.  369,  375 ;  Pack  v. 
Mayor,  &c.  of  N.  Y.  8  N.  Y.  222,  227 ;  Wiggins  v.  Hathaway.  0  Barb.  632, 
035  ;  Coon  v.  Syracuse  &  Utica  K.  R.  Co.  Id.  231,  237.  238  ;  City  of  Buffalo 
V.  Holloway,  14  Id.  101,  113;  Hickok  v.  Trustees  of  Plattsbargh,  15  Id.  427, 
441 ;  Sherman  v.  Rochester  &  Syracuse  R.  R.  Co.  Id.  574,  576 ;  Thurman  v. 
Wells,18  !d.500,5'i6;  Nicols  r.  Moody,  22  Id.  611,  619;  Blackwell  ».  Wis- 
wall,  24  Id.  3)5,  356  ;  Noiton  v.  Wiswall,  26  Id.  618,  621  ;  Blackstock  v.  N, 
Y.  &  Erie  R.  R.  Co.  20  N.  Y.  48.  51  ;  Smith  v.  N.  Y.  Central  R.  R.  Co.  24 
Id.  223,  2  9, 240 ;  Potter  v.  Saymour.  4  Bosw.  140,  147 ;  Treadwell  v.  Mayor, 
&c.  of  New  York,  1  Daly.  123,  128;  Boniface  v.  Relyca.  5  Abb.  Pr.  N.  S. 
2)9,  262;  McMullen  t.  Hoyt,  2  Daly,  271 ;  Higgins  v.  Watervlict  Turnpike 
Co.  46  N.  Y.  23,  27. 

305.  Salus  populi  suprema  est  lex. 

Mavnr.  &c.  of  N.  Y.  v.  Lord.  17  Wend.  285,  297;  Wilson  v.  Mayor, 
&c.  oi  N.  Y.  1  Den.  59.".,  598;  Ke's^v  v.  King.  32  Uaib.  410,  418;  s.  c.  11 
Abb.  Pr.  180,  186;  DoEohue  v.  Mayor  of  N.  Y.  3  Daly,  68. 


324  LEGAL  MAXIMS  WITH 

• 

306.  Sanguinis  conjunctio  benevolentia  deviucit  homines 
et  caritate. 

Steere  v.  Steere,  5  Johns.  Ch.  1,  13. 

^  307.  Scire  leges,  non  hoc  est  verba  earum  tenere,  sed 

vim  ac  potestatem. 

People  V.  Draper,  15  N.  Y.  532,  558;  Bouton  v.  City  of  Brooklyn,  15 
Barb.  375,  382;  s.  c.  7  How.  Pr.  198,  203;  Barnes  v.  Buck,  1  Laus.  268. 

308.  Scribere  est  agere. 

People  V.  Rathbun,  21  Wend.  509,  540. 

309.  Secundum  allegata  et  probata. 

Rome  Exchange  Bank  v.  Eames,  4  Abb.  Ct.  App.  Dec.  83;  Anonymous, 
17  Abb.  Pr.  48,  53;  Wright  v.  Delafield,  25  N.  Y.  266,  270;  rev'g23  Barb. 
498. 

310.  Semper  prsesumitur  pro  legitimatione  puerorum. 

Caujolle  V.  Ferrie,  23  N.  Y.  90,  107. 

311.  Semper  prsesumitur  pro  matrimonio. 

Ferric  v.  Public  Administrator,  4  Bradf.  28,  101. 

312.  Servanda  est  consuetudo  loci  ubi  causa  agitur. 

Decouche  v.  Savetier,  3  Johns.  Ch.  190,  219. 

313.  Si  alicujus  rei  societas  sit,  et  finis  negotio  impositus 

est,  finitur  societas. 

Griswold  v.  Waddington,  16  Johns.  438,  480. 

314.  Sic  utere  tuo  ut  alienum  non  laedas. 

Piatt  V.  Johnson,  15  Johns.  213,  215;  Panton  v.  Holland,  17  Id.  92,  99; 
Bush  V.  Brainard,  1  Cow.  78;  Crittenden  v.  Wilson,  5  Id.  165,  166;  Beach 
V.  Child,  13  Wend.  343,  347;  People  v.  Saratoga  &  Rensselaer  R.  R.  Co. 
15  Id.  113,  134;  Brill  v.  Flagler,  23  Id.  354,  358;  Brockway  v.  People,  3 
Hill,  558,  564;  Hay  v.  Cohoes  Co.  2  N.  Y.  159,  161 ;  Van  Pelt  v.  McGraw, 
4  N.  Y.  110,  113;  Auburn  &  Cato  Plank-road  Co.  v.  Douglass,  9  N.  Y. 
444,  446 ;  Griffin  v.  Mayor,  &c.  of  N.  Y.  Id.  456,  461 ;  Lasala  v.  Holbrook. 

4  Paige,  169,  171 ;  Firs't  Baptist  Church  ».  Utica  &  Schenectady  R.  R.  Co. 

5  Barb.  79,  83;  6  Id.  313,  318;  Waddell  v.  Mayor,  &c.  of  New  York,  8  Id. 
95,  99;  Van  Hoesen  i).  Coveutrv,  10  Id.  518,  521 ;  Hentz  v.  Long  Island  R. 
R.  Co.  13  Id.  646,  658;  Gilbert  v.  Beach,  4  Duer,  423,  428;  Ccngreve  v. 
Morgan,  Id.  439,  444;  Aiken  v.  Western  R.  R.  Co.  20  N.  Y.  370,  382; 
Manning  v.  ]Monaghan,  23  Id.  539,  548;  Pisley  v.  Clark,  35  N.  Y.  520, 521 ; 
compare  Thomas  i.  Kenyon,  1  Daly,  132,  142;  Doupe  v.  Genin,  45  N.  Y. 
119;  Rowe  v.  Smith,  45  N.  Y.  230;  compare  17,  93  (above),  323  (below). 

315.  Sic  volo,  sicjubeo. 

Tyler  v,  Gardiner,  35  N.  Y.  559,  589. 


REFERENCES  TO  LEGAL  DECISIONS.  325 

316.  Sigilla  et  statnse  affixsB  instrumento   domus  non 

continentiir,  sed  domus  portlo  sunt. 

Snedeker  v.  Warring,  12  N.  Y.  170,  176. 

317.  Silence  shows  consent. 

Hatch  V.  Benton,  6  Barb.  28,  35 ;  compare  283  (above). 

318.  Silent  leges  inter  arma. 

Matter  of  Beswick,  35  How.  Pr.  149,  156. 

319.  Simplex  commendatio  non  obligat. 

Taylor  v.  Fleet,  4  Barb.  95,  103. 

sed  caveat  emptor. 

Quintard  v.  Newton,  5  Robt.  72,  85. 

320.  Singuli  in  solidum  tenentur. 

Kirby  v.  Taylor,  6  Johns.  Ch.  242,  252;  comijare  233  (above). 

321.  Sola  ac  per  se  senectus  donationem,  testamentum, 

aut  transactionem  non  vitiat. 

Van  Alst  v.  Hunter,  5  Johns.  Ch.  148,  158. 

322.  Solutio  pretii  emptionis  loco  habetur. 

Curtis  V.  Groat,  6  Johns.  1G8,  170 ;  Osterhout  v.  Roberts,  8  Cow.  43,  44; 
Russell  «.  Gay,  11  Barb.  541,  543. 

323.  So  use  your  own  as  not  to  injure  another's. 

Brower  v.  Mayor,  &c.  of  N.  T.  3  Barb.  254,  257;  compare  17,  93,  314 
(above). 

324.  Stabit  praesumptio  donee  probetur  in  contrarium. 

Kc-nny  v.  Van  Home,  1  Johns.  385,  392;  Tibbetts  v.  Dowd,  23  Wend. 
379,  393. 

32.5.  Stare  decisis. 

Lion  «.  Burtiss,  20  Johns.  483,  487;  American  Ins.  Co.  v.  Dunham,  12 
Wend.  403,  467;  Townsend  v.  Cornins,  23  Id,  435,  443;  Sparrow  v.  King- 
man, I  N.  Y.  242,  2)5;  Baker  v.  Lorillard,  4  N.  Y.  257,  261;  Shoemaker 
V.  Benedict,  11  N.  Y.  176,  182;  Curtis  v.  Leavitt.  15  N.  Y.  9,  184,  223; 
Hoyt  V.  Martense  16  N.  Y.  231,  233;  Leavitt  v.  Blatchford,  17  N.  Y.  521, 
543;  Barnes  v.  Ontario  Bank,  19  N.  Y.  152,  155;  Leggett  v.  Hunter,  Id. 
445,  46i;  Hnrris  v.  Chxrk,  2  Barb.  94,  101;  People  v.  judges  of  Dutchess 
Oyer  &  T.  Id.  282,  283;  People  v.  Tredwav,  3  Id.  470,  474;  Tracy  v.  Rath- 
bun,  Id.  543,  546;  Peojile  v.  Mavor,  &c.  of  Brooklyn.  9  Id.  536,  543,  544; 
Copi  V.  Siblev,  12  Id.  521,  523;  {^arsons  v.  Montcath,  13  Id.  353,  359;  Birk- 
head  v.  Hrown,  5  S;mdf.  134.140;  Piin<Tle  r.  Phillips,  Id.  157,  16<);  Gif- 
ford  V.  Livingston,  2  Den.  380,  389,  392,  393,  394;  Woolsey  v.  Judd,  4 
Duer,  596,  599;  Brinckerhoflf ».  Board  of  Education  of  N.  Y.  2  Daly,  443, 


32G  LEGAL  MAXTMS  WITH 

445;  B.  c.  6  Abb.  Pr.  N.  S.  428,  432;  F.  Y.  &  New  Haven  R.  R.  Co,  v. 
Ketchum,  3  Abb.  Ct.  App.  Dec.  347;  Greonbaum  v.  Stein,  2  Daly,  223; 
Superintendent  of  Cortland  v.  Superintendent  ot  Herkimer,  44  N.  Y.  22, 
27 ;  compare  219  {above). 

et  nou  qiiieta  movere. 


Yates  V.  Lansincr,  9  Johns.  395,^428;  Drigfjs  v.  Rockwell,  11  Wend. 
504  507;  Bates  v.  Relyea,  23  Id.  330,  340;  Moore  v.  Lyons,  25  Id.  119, 
142';  Hanford  v.  Artcher,  4  Hill,  271,  323;  Taylor  v.  Heath,  Id.  593,  595; 
Mitchell's  Case,  12  Abb.  Pr.  249,  252;  compare  219  {abode). 

326.  Stat  pro  ratione  voluntas. 

Sears  v.  Shafer,  1  Barb.  408,  411;  Farmers'  Loan  &  Trust  Co.  v.  Hunt, 
16Id.  511,  525. 

voluntas  poi)uli. 


People  V.  Draper,  25  Barb.  344,  376. 

327.  Summiimjus,  summa  injuria. 

Deyo  V.  Van  Valkenburgh,  5  Hill,  242,  248. 

328.  Sunday  is  dies  non  juridicus. 

Van  Vechten  v.  Paddock,  12  Johns.  178,  180. 

329.  Suppressio  veri,  expressio  falsi. 

Addington  v,  Allen,  11  Wend.  374,  417. 

330.  Suppressio  veri,  suggestio  falsi. 

Paul  V.  Hadley,  23  Barb.  521,  525. 

331.  Tempora  mutantur,  et  nos  mutamur  in  illis. 

Billings  v.  Baker,  28  Barb.  343,  362. 

332.  Testes  ponderantur,  non  numerantur. 

Allen  V.  Public  Administrator,  1  Bradf.  378,  380;  compare  253  {above), 
386  {btlow). 

333.  That  is  certain  whicli  may  be  made  certain. 

Youngs  V.  Wilson.  27  N.  Y.  351 ;  Fitzhugh  v.  Raymond,  49  Barb.  645, 
649;  compare  128  {above). 

334.  The  husband  and  wife  are  but  one  person  in  the 

law. 

White  V.  Wager,  32  Barb.  250,  2G0 ;  affi'd  in  25  N.  Y.  328. 

335.  That  which  should  have  been  done,  is  considered  in 

equity  as  done. 

Roscvelt  V.  Bank  of  Niagara,  Hopk.  583;    compare  88  {above),  377 
(below). 


REFERENCES  TO  LEGAL  DECISIONS.  32T 

33G.  The  incident  passes  by  the  grant  of  the  principal. 

Seymour  v.  Canandaigua  &  Niagara  Falls  R.  R.  Co.  25  Barb.  284,  310. 

but  not  the  i)rincipal  by  the  grant  of  the  inci- 
dent. 

Merritt  v.  Bartholic,  36  K  Y.  44,  45. 

337.  The  law  careth  not  for  small  things. 

People  V.  Harriot,  3  Park.  Cr.  112,  113;  compare  71  (above). 

338.  The  law  considers  that  every  man  intends  the  legit- 

imate consequences  of  his  acts. 

Thomas  v.  Murray,  34  Barb.  157,  171;  Dunham  v.  Waterman,  17  N.  Y. 
■9,  21. 

339.  The  law  judges  a  man's  previous  intentions  by  his 

subsequent  acts. 

Dumont  v.  Smith,  4  Den.  319,  320. 

340.  The  law  would  rather  tolerate  a  private  loss  than  a 

public  evil. 

Dry  Dock,  «fec.  R.  R.  Co.  v.  Mayor,  &c.  of  New  York,  55  Barb.  298, 
308. 

341.  The  letter  killeth,  while  the  spirit  keepeth  alive. 

Murray  v.  N.  Y.  Central  R.  R.  Co.  3  Abb.  Ct.  App.  Dec.  339;  Tracy  v. 
Troy  &  Boston  R.  R.  Co.  38  N.  Y.  433,  437. 

342.  The  owner  of  property  is  not  divested  of  his  title 

by  a  larceny  of  it. 

Newton  v.  Porter,  5  Lans.  410. 

343.]^The  owner  of  the  bed  of  the  stream  does  not  own 
the  water,  but  only  has  a  mere  right  to  use  it. 

Pixlcy  V.  Clark,  35  N.  Y.  520,  525. 

344.  There  is  no  wrong  without  a  remedy. 

Like  V.  McKinstry,  41  Barb.  180,  188;  and  see  352,  385  (ielow). 

345.  The  value  of  life  is  so  great  as  to  be  incapable  of 

being  estimated  by  money. 

Green  v.  Hudson  R.  R.  R.  Co.  2  Abb.  Ct.  App.  Dec.  277. 

340.  The  wrong-doer  shall  never  be  heard  in  court  to 
claim  that  his  felony,  or  other  wrong,  gives  him 
any  advantage  as  a  defense. 

Newton  v.  Porter,  5  Lana.  416;  compare  212  (above). 


328  LEGAL  MAXIMS  WITH 

347.  To  questions  of  law  the  court,  and  to  questions  of 

fact,  the  jury  respond. 

Vedder  v.  Fellows,  20  N.  Y.  126,  130;  compare  7  {above). 

348.  Transit  terra  cum  onere. 

Van  Rensselaer  v.  Bonesteel,  24  Barb.  365,  308. 

349.  Transit  in  rem  judicatam. 

Benson  v.  Paine,  2  Hilt.  552,  557. 

350.  Tutius  semper  est  errare  in  acquittando,  quam  in 

Ijuniendo  ;  ex  jDarte  misericordioe,  quam  ex  parte 
justitiae. 

People  V.  Schryver,  42  N.  Y.  1,  9. 

351.  Ul)i  eadem  ratio,  ibi  eadem  jus. 

Hood  V.  Manhattan  Fire  Ins.  Co.  11  N.  Y.  532,  543. 

352.  Ubi  jus,  ibi  remedium. 

Green  v.  Hudson  River  R.  R.  Co.  2  Abb.  Ct.  App.  Dec.  277;  Like  v. 
McKinstry,  41  Barb.  186,  188;  compare  344  {aiove),  385  (below). 

353.  Ubi  non  est  manifesta  injustitia,  judices  habentur 

pro  bonis  viris,  et  judicatum  pro  veritate. 

Golx  V.  Low,  1  Johns.  Cas.  341,  345;  compare  159,  301  {above). 

354.  Ubi  nullum  matrimonium,  ibi  nulla  dos. 

Wait  V.  Wait,  4  N.  Y.  95,  109;  4  Barb.  192,  202,  214;  Cbarraud  ?>. 
Charraud,  1  N.  Y.  Leg.  Obs.  134,  136;  compare  226  {abate). 

355.  Unumquodque  dissolvitur  eo  modo  quo  colligatur. 

Clark  V.  Niblo,  6  Wend.  236,  252;  compare  187,  202,  287  {above). 

356.  Unumquodque  ligamen  dissolvitur  eodem  ligamine 

quo  ligatur. 

Esmond  v.  Van  Beuschoten,  12  Barb.  366,  375;  compare  187,  202,  28T 
{dbo'ce). 

357.  Utile  per  inutile  non  vitiatur. 

Rickets  t.  Livingston,  2  Johns.  Cas.  97,  101;  Mason  v.  Franklin,  3 
Johns.  202,  206;  Case  of  Yates,  4  Id.  317,  367;  Douglass  v.  Satterlee,  11 
Id.  16,  19;  Chapman  v.  Smith,  13  Id.  78,  80;  Ogden  v.  Barker,  18  Id.  87; 
93;  People  v.  Adams,  17  Wend.  475,  476;  Polly  v.  Saratoga  &  Washing- 
ton R.  R.  Co.  9  Barb.  449,  464;  Aylesworth  v.  Brown,  10  Id.  167,  174; 
People  v.  Cummings,  3  Park.  Cr.  343,  354;  Coukcy  r.  Bond,  36  N.  Y. 
427,  430. 


REFERENCES   TO   LEGAL  DECISIONS.  32& 

358.  Ut  poena  ad  paucos,  metus  ad  omnes,  perveneat. 

Freeman  v.  People,  4  Den.  9,  20. 

359.  Ut  res  magis  valeat  quam  x^ereat. 

Betts  V.  Turner.  1  Johns.  Cas.  65,  70:    People  v.  Byron,  3  Id.  53.  60 
Jackson  c.  Rowland,  G  Wend.  6G6,  670;    Rogers  v.  E:igle  Fire  Co.   9  Id 
611,  642;  Fish  v.  Hubbard,  21  Id.  650,  654;  Darling  v.  Rogers,  22  Id.  483 
488;  Douglas  v.  Ilowland.  24  Id.  35,  41 ;  Andrews  v.  Pontile,  Id.  285,288 
Hall  V.  Newcomb,  3  Hill,  233,  235  ;    7  Id.  416,  423;  People  v.  Van  Rens 
selaer.   9  N.  Y.  291,  823  ;    Sclieimerliorn  v.  Taluian,   14  N.  Y.   93,  135 
Lan^don  v.  Astor,  16  N.  Y.  9.  47;    Nichols  i).  McEwen,  17  N.  Y.  22,  25 
Laub  V.  Buckmiller,  Id.  620,  627;   Hatcher  v.  Rocheleau,  18  N.  Y.  86,  92 
Leavitt  v.  Blatclilord,  5  Barb.  9,  30;    Ellis  v.  Brown,  6  Id.  282,  296,  300 
Converse  v.  Kellogg,  7  Id.  590,  593  ;    Dunning  v.  Stearcs,  9  Id.  630,  633 
Griswold  v.   Slocum.    10  Id.  402,  405;  Mason  r.  White,  11  Id.  173,  189 
Warhus  v.  Bowery  Savings  Bank,  5  Duer,  67,  71  ;  Richards  v.  Warring,  4 
Abb.  Ct.  App.  Dec.  47;    Harrison  v.  Harrison,  36  N.  Y.  543,  547;    Draper 
«,  Snow,  20  N.  Y.  331,  342;    Caiijclle  v.  Ferric,  23  Id.  90,  139  ;    Sherman 
V.  Elder,  24  Id.  381,  384  ;  Spear  ^.Downing,  34  Barb.  522,  527;  Woodgate 
V.  Fleet,  9  Abb.  Pr.  222,  239  ;  compare  360  {below). 

360.  Valeat  quantum  valere  i)otest. 

People  V.  Collins,  7  Johns.  549,  5-'i4;  Ruergles  c.  Sherman,  14  Id.  446, 
450;  Jackson  ®  Bowen.  7  Cow.  13,  20;  Berly  v.  Tay'or,  5  Hill,  577,  5S8; 
Baker  v.  Braman,  6  Id.  47,  48;  Morris  v.  People,  3  Den.  381.  396;  V.dl  v. 
Vail,  7  Barb.  22(5,  241 ;  Belmont  v.  Coleman,  21  N.  Y.  96,  102 ;  compare 
359  {aJ)oce). 

30 1.  Verba  aliquid  operari  debent. 

Neilson  v.  Commercial  Mutual  Ins.  Co.  3  Duer,  455,  461  ;  Cook  v. 
Beal,  1  Bosw.  497,  505;  compare  363  (Jelow). 

302.  Verba  intentioui,  et  nou  e  contra,  debent  inservire. 

Hayes  v.  Kershow,  1  Sandf.  Ch.  253,  263. 

303.  Verba  debept  intelligi  cum  elfectu. 

Rickets  v.  Livingston,  2  Johns.  Cas.  97,  101  ;  compare  361  (nlove). 

■304.  Verba  fortius  accipiuntur  contra  proferentem. 

Hodgkins  v.  Montgomery  County  Mutu.d  Ins.  Co.  34  Barb.  213,  210. 

365.  Verba  generalia  restringuntur  ad  aptitudinem  rei. 

Van  Hagan  v.  Van  Rensselaer,  18  Johns.  43  •,  423. 

366.  Verbum  imperfecti  temporis  rem  adbue  imperfcctara 

significat. 

Mactierc.  Frith,  6  Wend.  103,  120. 

307.  Veritas  nominis  tollit  errorem  demonstnUioni.s. 

Jackson  v.  Sill,  11  Johns.  201,  218. 


330  LEGAL   MAXIMS   WITH 

368.  Via  antiqua  via  est  tuta. 

Manning  v.  Manning,  1  Johns.  Ch.  537,  530. 

3G9.  Vidctur  qui  surdus  et  mutus  ne  poet  faire  aliena- 
tion. 

Brower  v.  Fisher,  4  Johns.  Ch.  441,  444. 

370.  Vigilantibus  non  dormientibus  leges  subveniunt. 

Smedhnrg  v.  More,  26  Wend  238,  247;  Hazul  v.  Dunham,  1  Hall,  655, 
658;  Bruen  v.  Hone,  2  Barb.  586,  595;  Tajlor  v.  Fleet,  4  Id.  95,  103; 
Bench  v.  Sheldon,  14  Id.  66,  71;  Munn  r.  Worrall,  16  Id.  221,  232;  Voor- 
hees  V.  Seymour,  26  Id.  569,  583;  compare  167  {above). 

371.  Vires  acqiiirit  eundo. 

Manut).  Mann,  1  Johns.  Ch.  231,  237. 

372.  Void  in  part,  void  in  toto. 

Curtis  V.  Leavitt,  15  N.  Y.  9,  96. 

373.  Void  things  are  as  no  things. 

People  V.  Shall,  9  Cow.  778,  784. 

374.  Volenti  non  fit  injuria. 

Seagar  v.  Sligerland,  2  Cai.  219;  Bates  v.  K  Y.  Ins.  Co.  3  Johns.  Cas. 
238,  239;  Hall  «.  Shultz,  4  Johns.  240,  247,  249;  Moultou  v.  Bennett,  18 
Wend.  586,  588;  Hartfield  v.  Roper,  21  Id.  015,  620;  Scroeppel  v.  Com- 
ing. 5  Den.  236,  241 ;  Harmony  v.  Bingham,  13  N.  Y.  99,  109 ;  Corwin  v. 
N.  Y.  &  Erie  li.  R.  Co.  13  N.  Y.  42,  49  :  Lyon  v.  Tallmadge,  1  Johns.  Ch. 
184,  187  ;  Livingston  v.  Gibbons,  5  Id.  25it,  257  ;  Palmer  v.  Lord,  6  Id,  95, 
101 ;  Van  Benschooten  v.  Lawson,  Id.  313,  316;  Lemmon  v.  People,  20  N. 
Y.  562,  623  ;  Phillips  v.  Wooster,  36  K  Y.  412,  415. 

375.  Vox  emissa  volat,  litera  scripta  manet. 

Bsebe  v.  Bank  of  N.  Y.  1  Johns.  529,  571, 

376.  Whatever  never  was,  never  ought  to  be. 

People  V.  Clarke,  10  Barb.  120,  143. 

377.  What  has  been  agreed  to  be  done,  and  what  ought 

to  be  done,  shall,  for  the  advancement  of  justice, 
be  regarded  as  done. 

Hasbrook  v.  Paddock,  1  Barb.  635,  640 ;  compare  87,  335  {aiove). 

378.  When  an  agreement  is  reduced  to  writing,  all  pre- 

vious treaties  are  resolved  into  that. 

Bayard  v.  Malcolm,  1  Johns.  453,  461. 


REFERENCES  TO   LEGAL  DECISIONS.  331 

379.  When  anything  is  granted,  all  the  means  to  attain 

it,  and  the  fruits  and  effects  of  it,  are  granted 
also. 

Black  V.  Sixth  Avenue  R.  R.  Co.  1  Daly,  53G,  538. 

380.  Where  both  are  equally  in  fault,  the  condition  of 

the  defendant  is  preferable. 

Briggs  V.  Easterly,    63  Barb.  51 ;  compare  147,  151  (above). 

381.  Where  equities  are  equal,  the  law  must  prevail. 

Fisk  V.  Potter,  2  Abb.  Ct.  App.  Dec.  138. 

382.  Where  one  of  two  innocent  persons  must  suffer  by 

the  wrong  of  another,  the  one  who  enables  such 
other  to  commit  the  wrong  must  bear  the  con- 
sequences. 

Spraights  v.  Hawley,  39  N.  Y.  441,  448. 

383.  Whoever  grants  a  thing,  is  supposed  tacitly  to  grant 

that  without  which  the  grant  itself  would  be  of  no 
effect. 

Seymour  v.  Canandaigua  &  Niagara  Falls  R.  R.  Co.  35  Barb.  284,  310 ; 
compare  262,  265  {above). 

384.  Wherever  persons  agree  concerning  any  particular 

subject,  that,  in  a  court  of  equity,  as  against  the 
party  himself  and  any  claiming  under  him  volun- 
tarily or  with  notice,  raises  a  trust. 

Gilchrist  v.  Stevenson,  9  Barb.  9,  14. 

385.  Where  there  is  a  wrong,  there  should  bo  a  remedy. 

Devendorf  v.  Wert,  42  Barb.  227,  229 ;  and  sec  344,  352  (above). 

386.  Witnesses  should  be  weighed,  not  numbered. 

Matter  of  the  World's  Ins.  Co.  40  Barb.  499,  506 ;   compare  253,  832 
(above). 


MAXIMS  OF  JURISPRUDENCE. 


[The  following  selection  of  maxims,  with  explanatory  notes,  is  taken  from  the 
Civil  Code  prepared  for  the  State  of  New  York,  by  the  Commissioners  of  the 
Code  in  1857-1865.  The  legislature  failed  to  act  upon  the  proposed  Code.  Sub- 
sequently the  State  of  California,  on  adopting,  with  some  modifications,  as  the 
law  of  that  State,  the  labors  of  the  New  York  Commissioners,  included  in  it  the 
maxims  herewith  given.  The  collection  is  introduced  by  a  statutory  declaration 
that  they  are  not  intended  to  qualify  the  provisions  of  the  Code,  but  to  aid  in 
their  just  application.] 


1.  When  the  reason  of  a  rule  ceases,  so  should  the 
rule  itself. 

"  Cessante  ratione  legis  cessat  ipsa  lex."  (Co.  Litt.  70  b. ;  Branch's 
Maxims,  68  ;  Richards  v.  Heather,  1  B,  «fe  Aid.  33.) 

The  rule  of  the  English  law  that  a  legacy  from  a  parent  to  a  child  is 
presumed  to  be  satisfied  by  a  subsequent  gift  from  the  parent,  says  Judge 
Duer,  is  one  which  sprang  from  and  was  sustained  by  the  peculiar  policy 
of  the  English  law  of  real  property  and  succession,  and  is  plainly  incon- 
sistent with  the  spirit  of , the  American  law  upon  those  subjects.  "  The 
reasons  of  the  doctrine  with  us  have  ceased  to  exist,  and  if  there  is  any 
truth  or  obligatory  force  in  the  maxim,  cessante  ratione  cessat  ipsa  lex,  the 
doctrine  has  perished  with  them."  (Langdon  v.  Astor's  Exec'rs,  3  Duer, 
557.) 

Again,  the  rule  that  the  opinion  of  witnesses  is  not  admissible,  is  "based 
upon  the  presumption  that  the  tribunal  before  which  the  evidence  is  given 
is  as  capable  of  forming  a  judgment  on  the  facts  as  the  witness.  When 
circumstances  rebut  this  presumption,  the  rule  itself  naturally  ceases. 
Cessante  ratione,  &c.  Hence  it  is  that  on  questions  of  science,  skill,  trade, 
or  others  of  the  like  kind,  persons  of  skill,  or  experts,  are  permitted  to 
give  their  opinions."  (Dewitt  v.  Barley,  9  N.  Y.  375.)  The  practice  of 
granting  injunctions  to  stay  legal  proceedings  was  founded  upon  the  in- 
ability of  the  courts  of  law  to  do  full  justice.  The  union  of  law  and  equity, 
under  the  Code  of  Civil  Procedure,  has  removed  the  ground  of  the  rule, 


334  MAXIMS  OF  JURISPRUDENCE. 

and  such  injunctions  are  not  now  to  be  allowed.  (Grant  v.  Quick,  5  Sandf. 
613.)  For  further  illustrations,  see  Parks  v.  Jackson,  11  Wend.  442,  456  ; 
Van  Rensselaer  v.  Smith,  27  Barb.  104, 148  ;  Berley  v.  Rampacher,  5  Duer, 
183,  18G;  Tate  v.  Jordan,  3  Abb.  Pr.  392,  394. 

2.  Where  the  reason  is  .the  same,  the  rule  should  be 
the  same. 

"  Ubi  eadem  ratio,  ibi  idem  jus."     (Co.  Litt.  10  a ;  Branch's  Max.  64.) 

Thus  it  was  long  the  settled  rule  respecting  a  writing  under  seal  that  a 
material  alteration  of  it  by  the  obligee  rendered  the  instrument  void. 
(Pigot's  Case,  11  Co.  Rep.  27;  Davidson  v.  Cooper,  11  M.  &  W.  799.)  The 
obvious  reason  of  the  rule  existed  as  well  in  the  case  of  an  instrument  not 
sealed,  and  the  rule  was  therefore  applied  to  bills  of  exchange  and  promis- 
sory notes  (Master  v.  Miller,  4  T.  R.  320;  2  H.  Bl.  140),  and  other  mer- 
cantile contracts,  not  negotiable.  Powell  v.  Divett,  13  East,  29;  Davidson 
V.  Cooper,  1 1  M.  &  W.  778.)  So  in  Hood  v.  Manhattan  Fire  Ins.  Co.  (11  N. 
Y.  532,  543),  the  law  of  fixtures  was  referred  to,  upon  the  strength  of  this 
maxim,  for  the  purpose  of  determining  whether  certain  timber,  intended 
to  form  part  of  a  vessel,  was  covered  by  an  insurance  upon  the  vessel.  See 
also  Graves  v.  Berdan,  26  N.  Y.  498,  500. 

3.  One  must  not  change  his  purpose  to  the  injury  of 
another. 

"  Nemo  potest  mutare  consilium  suum  in  alterius  injuriam."  (Dig.  50, 
17,  75.) 

The  spirit  and  application  of  this  maxim  are  examined  by  Chancellor 
Kent,  in  Dabh  v.  Van  Kleeck  (7  Johns.  54),  with  special  reference  to  retro- 
active statutes.  In  Bonati  v.  Welsch  (24  N.  Y.  157,  162),  it  was  held, 
partly  upon  the  authority  of  this  maxim,  that  a  husband's  change  of  dom- 
icile did  not  affect  the  rights  of  property  which  his  wife  acquired  at  her 
marriage  by  the  law  of  the  place  where  they  were  married. 

4.  Any  one  may  waive  the  advantage  of  a  law  in- 
tended solely  for  his  benefit.^  But  a  law  established  for 
a  public  reason  cannot  be  contravened  by  a  private 
agreement.^ 

'  "  Qailibet  potest  renunciare  juri  pro  se  introducto."  (Branch's  Max. 
809.)     Compare  "Modus  et  conventio  vincunt  legem." 

Upon  this  principle,  one  may  omit  to  plead  his  infancy  or  other  dis- 
ability, or  the  statute  of  limitations,  or  time  of  prescription,  in  avoidance 
of  his  obligations,  or  may  waive  notice  of  the  dishonor  by  a  prior  party  of 
a  bill  or  note.     (Conkling  v.  King,  10  N.  Y.  446;  and  see  Buck  v.  Burk, 


MAXIMS   OF  JURISPRUDENCE.  835 

18  N.  Y.  841.)  One  may  also,  upon  the  same  principle,  -waive  a  statutory 
right  (Toombs  v.  Rochester  &  S.  R.  R.  Co.  5  B:irb.  83;  Buel  v.  Trustees, 
&c.  3  N.  Y.  197),  or  a  constitutional  provision  made  for  his  benefit,  as, 
for  example,  the  right  of  trial  by  jury.  (Lee  ®.  Tillotson,  24  Wend.  337; 
People  V.  Murray,  5  Hill,  4G8  ;  Baker  v.  Braman,  6  Id.  48;  and  see  People 
V.  Van  Rensselaer,  9  N.  Y.  333;  People  v.  Rathbun,  21  Wend.  542;  Atkins 
V.  Kinman,  20  Wend.  241,  248;  United  States  «.  Wyngall,  5  Id.  IG,  20: 
Stevens  «.  People,  19  N.  Y.  549;  Wells  v.  N.  Y.  Central  R.  R.  Co.  24  N.  Y. 
181,  194  ;  Allen  v.  Jaquish,  21  Wend.  628,  631  ;  Baker  v.  Hoag,  7  Barb. 
113,  117;  Allen  v.  Merchants'  Bank,  22  Wend.  215.  233.) 

'  "Privatorum  conventio  juri  publico  non  derogat."  (Dig.  50,  17,  45.) 
"  Jus  publicum  privatorum  pactis  mutari  non  potest."     (Papiuian.) 

Though  individuals  may  generally  waive  provisions  which  the  law  pre- 
scribes for  their  advantage  or  protection,  yet  th^ir  private  compacts  can- 
not be  permitted  either  to  render  that  just  orsuffirdent  between  themselves 
which  the  law  declares  essentially  unjust  or  insufficient,  or  to  injure  the 
legal  rights  of  others,  or  to  impair  the  integrity  of  a  rule,  the  strict  main- 
tenance of  which  is  necessary  to  the  common  welfare.  The  principle  of 
this  maxim  has  forbidden,  in  our  law,  marriage  brocage  bonds;  undue 
restraint  of  trade  (see  §  833),  or  of  marriage  (see  §  838) ;  a  seaman's  insur- 
ance of  his  wages;  an  agreement  to  waive  a  claim  arising  from  the  fraud 
of  one  of  two  contiacting  parties  (see  §  828) ;  a  mortgagor's  covenant  with 
a  mortgagee  not  to  enforce  his  equitable  right  of  redemption ;  an  ao-ree- 
ment  to  waive  the  benefit  of  the  exemption  laws,  &c.  (See  Kneetle  v. 
Newcomb,  22  N.  Y.  249;  Maun  v.  Herkimer  County  Ins.  Co.  4  Hill,  192.) 
So,  in  a  capital  case,  a  prisoner  cannot  waive  trial  by  a  jury  of  twelve  men. 
(Cancemi  v.  People,  18  N.  Y.  128;  7  Abb.  Pr.  271.) 

5.  One  must  so  use  his  own  riglits  as  not  to  infringe 
upon  the  rights  of  another. 

*'  Sic  utere  tuo  ut  alienum  non  la^das."  (9  Co.  Rep.  59;  Branch's  ]Max. 
160.)  See  also  Piatt  ».  Johnson,  15  Johns.  213,  215;  Baptist  Ciiurch  of 
Schenectady  v.  Schenectady  &  Troy  R.  R.  Co.  5  Barb.  83;  Lasala  v.  Hol- 
brook,  4  Paige,  71 ;  Van  Hoesen  v.  Coventry,  10  Barb.  521 ;  Ellis  v.  Dun- 
can, 21  Barb.  203;  Ferrand  v.  Marshall,  21  Barb.  420,422;  Carhart  r.  Au- 
burn Gaslight  Co.  22  Barb.  307,  310;  Aiken  v.  Western  R.  R.  Co.  20  N.  Y. 
382 ;  Rogers  v.  Parker,  31  Barb.  454. 

"  The  principle  of  this  maxim  is  a  sound  and  beneficial  one.  It  im- 
plies what  the  law  asserts,  that  all  men  have  equal  rights  before  the  law.'' 
(Carhart  v.  Auburn  Gas  Co.  22  Barb.  307.)  Though  the  proprietor  of  land 
bordering  upon  a  stream  may  use  the  water  for  his  own  purposes,  he  may 
not  in  any  way  infringe  upon  the  rights  of  those  above  him,  as,  for  example, 
by  checking  the  flow  of  the  stream;  nor  the  rights  of  those  below  him  by 


336  MAXIMS  OF  JURISPRUDENCE. 

diminishing  the  vohime  or  injuring  the  quality  of  the  water.  The  maxim 
is  very  frequently  invoked  and  applied  in  cases  of  nuisance  ;  for  though 
a  man  may  generally  use  his  own  land  as  he  pleases,  he  may  not  erect 
upon  it  a  nuisance  to  the  annoyance  of  his  neighbor.  (Hay  v.  Cohoes  Co. 
2  N.  Y.  161  ;  Brown  v.  Cayuga  &  S.  R.  R.  Co.  12  N.  Y.  494.) 

"Acts  may  be  harmless  in  themselves  so  long  as  they  injure  no  one,  but 
the  consequences  of  acts  often  give  character  to  the  acts  themselver." 
(Van  Pelt  v.  McGraw,  4  N.  Y.  43.)  The  rule  is  not  however  to  be  applied 
without  limitation.  It  extends  to  all  damages  for  which  the  law  gives  re- 
dress, but  no  further.  If  applied  literally,  it  would  deprive  us,  to  a  great 
extent  of  the  legitimate  use  of  our  property,  and  impair,  if  not  destroy  its 
value.  (Hentz  v.  Long  Island  R.  R.  Co.  13  Barb.  Go8 ;  PJxley  v.  Clarke,  2 
Barb.  272.)  In  general  a  man  may  use  his  property  as  he  pleases  for  all 
purposes  to  which  such  property  is  usually  applied,  without  being  answer- 
able for  consequences,  if  he  exercises  proper  care  and  skill  to  prevent  any 
unnecessary  injury  to  others.  (Fisher  v.  Clark,  41  Barb.  329.)  No  one  is 
liable  in  damages  for  the  reasonable  exercise  of  a  right,  when  it  is  accom- 
panied by  a  cautious  regard  for  the  rights  of  others,  if  the  act  is  not  done 
maliciously,  and  when  there  is  no  just  ground  for  the  charge  of  negligence 
or  unskillfulness.     (Panton  v.  Holland,  17  Johns.  92.) 

6.  He  who  consents  to  an  act  is  not  wronged  by  it. 

"Volenti  non  fit  injuria."  (Bracton,  fol.  18;  Branch's  Max.  127;  Hart- 
field  V.  Roper,  21  Wend.  620;  Corwin  v.  N.  Y.  &Erie  R.  R.  Co.  13  N.  Y. 
49;  Lyon  v.  Tallmadge,  1  Johns.  Ch.  187;  Palmer  i).  Lord,  6  Johns.  Ch. 
101 ;  Leramon  v.  People,  20  N.  Y.  628.)  "  Nulla  injuria  est  quae  in  volen- 
tem  fiat."     (Dig.  47, 10,  1,  5). 

A  husband  who  connives  at  the  adultery  of  his  wife  has  no  right  to  a 
divorce  on  the  ground  of  her  infidelity.  (Forster  v.  Forster,  1  Ilagg.  Con. 
144.)  A  father  who  connives  at  his  daughter's  seduction,  cannot  recover 
damages  therefor.  (Seagar  f.  Sligerland,  3  Caines,  219.)  One  who  con- 
sents to  the  stowage  of  his  goods  upon  the  deck  of  a  ship,  can  maintain 
no  action  for  a  wrongful  stowage  of  them.  (Gould  v.  Oliver,  2  Scott  N.  R. 
257.)  One  who  voluntarily  pays  a  just  debt  contracted  during  his  in- 
fancy, or  barred  by  the  statute  of  limitations,  has  no  right  to  repayment 
of  the  money.  (See  Bates  v.  N.  Y.  Ins.  Co.  3  Johns.  Cas.  240.)  This  rule 
is  only  applied  where  the  party  had  freedom  in  exercising  his  will.  (Har- 
mony V.  Bingham,  12  N.  Y.  109;  see  also  Moulton  v.  Bennett,  18  Wend. 
588.) 

7.  Acquiescence  in  error  takes  away  the  right  of  ob- 
jecting to  it. 

"Consensus  tollit  errorem,  is  a  maxim  of  the  common  law  and  the  dic- 
tate of  common  sense."     (Rogers  v.  Cruger,  7  Johns.  Gil.) 


MAXIMS  OF  JURISPRUDENCE.  337 

"Upon  the  principle  of  this  maxim  rests  an  important  branch  of  the  doc- 
trine  of  waiver.  An  irregularity  in  the  service  of  a  paper  in  a  cause,  is 
generally  waived  by  retaining  and  acting  upon  it.  (Georgia  Lumber  Co. 
V.  Strong,  3  How.  Pr.  246.)  A  voluntary  and  general  appearance  in  an  ac- 
tion is  a  waiver  of  all  defects  in  the  summons  or  other  process.  (Webb  v. 
Mott,  6  How.  Pr.  440;  and  Yates  v.  Russell,  17  Johns.  461.)  See  further 
illustrations  of  the  rule  in  Watkins  v.  Weaver,  10  Johns.  107,  108 ;  Far- 
rington  v.  Hamblin,  12  Wend.  213,  213. 

8.  jS'o  one  can  take  advantage  of  his  own  wroug. 

"NuUus  commodum  capere  potest  de  injuria  sua  propria." 

This  is  a  rule  of  such  binding  force  as  to  be  held  obligatory  against 
the  wrong-doer,  even  as  between  himself  and  one  cognizant  or  participant 
of  the  wrong.  If  one,  for  the  purpose  of  defrauding  his  creditors,  con- 
veys his  property  to  another,  he  cannot  set  up  the  fraud  to  avoid  the  deed 
as  between  himself  and  his  accomplice.  (Jackson  v.  Garnsey,  16  Johns. 
189;  Safford  v.  Wyckoff,  4  Hill,  457;  see  Moore  v.  Livingston,  28  Barb. 
543;  14  How.  Pr.  11;  Ford  d.  Harrington,  IG  N.  Y.  285.)  So  when  per- 
formance of  a  condition  is  rendered  impossible  by  the  act  of  the  obligee, 
the  obligor  incurs  no  penalty.     (Com.  Dig.  Condition,  D.  1 ;  see  §  727.) 

9.  He  who  has  fraudulently  dispossessed  himself  of  a 
thing  may  be  treated  as  if  he  still  had  possession. 

"  Qui  dolo  desierit  possidere,  pro  possidente  damnatur." 

On  this  principle,  an  action  for  the  possession  of  specific  chattels  may 
be  maintained  against  a  defendant  who  wrongfully  parted  with  their  pos- 
session before  the  action  was  brought.     (Nichols  r.  Michael,  23  N.  Y.  267.) 

10.  He  who  can  and  does  not  forbid  that  which  is 
done  on  his  behalf,  is  deemed  to  have  bidden  it. 

"  Semper  qui  non  prohibet  pro  sc  intervenire  mandare  creditur." 

11.  No  one  should  suffer  by  the  act  of  another. 

"Res  inter  alios  acta  alteri  noccre  non  debet."  (Sec  Gelston  v.  Hoyt, 
13  Johns.  361,  381 ;  Sweet  v.  Barney,  23  N.  Y.  335,  341  ;  Langdon  v.  As- 
tor,  16  N.  Y.  9,  31.) 

The  principle  of  this  perhaps  most  important  and  useful  of  the  maxims 
relating  to  the  law  of  evidence,  forbids  in  general  (for  necessity  has  intro- 
duced some  exceptions  to  the  rule),  that  any  one  shall  be  bound  by  acts  or 
-conduct  of  others,  to  which,  neither  in  fact  nor  in  law,  he  was  party  or 
privy.  It  is  illustrated  by  the  rules  respecting  declarations  and  private 
memoranda  of  third  persons  ;  and  respecting  the  effect  of  judgments,  to 
which  one  is  altogether  a  stranger.  (Broom's  Maxims,  432.) 
22 


338  MAXIMS  OF  JURISPRUDENCE. 

12.  He  who  takesjhe  benefit  must  bear  the  burden. 

"  Qui  sentit  commodum,  sentire  debet  et  onus."  (Paine  v.  Bonney,  6 
Abb.  Pr.  10(5;  Frost  ■».  Saratoga  Ins.  Co.  5  Denio,  158;  Bartlett  v.  Crozier, 
17  Johns.  453;  Hendricks  v.  Judah,  2  Cai.  25,  28;  United  Ins.  Co.w.  Rob- 
inson, Id.  280,  288;  Matter  of  Mayor,  &c.  of  New  York,  11  Johns.  771.) 

One  who  takes  an  estate  in  land  and  enjoys  the  benefits  resulting  from 
his  title,  must  bear  the  burdens  of  the  incumbrances  upon  the  land  and  of 
the  covenants  that  run  with  it.  (Denman  v.  Prince,  40  Barb.  213;  Ver- 
planck  V.  Wright,  23  Wend.  506  ;■  Priestly  v.  Foulds,  2  Scott  N.  R.  225.) 
The  right  of  a  partner  to  share  the  profits  of  the  partnership  business  is- 
justly  coupled  with  a  corresponding  liability  for  its  debts. 

13.  One  who  grants  a  thing  is  presumed  to  grant  also 
whatever  is  essential  to  its  use. 

"  Cuicuuque  aliquis  quid  concedit,  concedere  videtur  et  id  sine  quo  res- 
ipsa  esse  non  potest."  (See  Sterricker  v.  Dickinson,  9  Barb.  518;  Troup 
v.  Hurlbut,  10  Id.  359;  People  v.  Hicks,  15  Id.  160;  Seymour?;.  Canan- 
daigua,  «&c.  R.  R.  Co.  25  Id.  310.) 

The  grant  of  a  piece  of  land,  surrounded  by  other  land  of  the  grantor, 
grants  also,  by  implication,  the  right  of  a  convenient  way  over  such  other 
land.  The  grant  of  a  corporate  franchise  implies  a  grant  to  make  by-laws, 
and  to  exercise  all  other  powers  which  are  necessary  for  eflectuating  th& 
object  of  the  charter. 

14.  For  every  wrong  there  is  a  remedy. 

"Ubi  jus,  ibi  remedium."     (Johnstone  v.  Sutton,  1  T.  R.  812.) 

Every  wrongful  invasion  of  a  right  imports  injury  and  damage,  though 
there  be  no  pecuniary  loss,  and  entitles  the  person  injured  to  redress. 
(Ashhy  V.  White,  2  Ld.  Raym.  953;  and  see  Green  v.  Hudson  River  R.  R. 
Co.  28  Barb.  9,  10.)  By  reference  to  this  principle  an  action  for  slacder 
to  title  of  personal  property  has  recently  been  sustained.  (Like  v.  McKin- 
stry,  41  Barb.  186.) 

15.  Between  those  who  are  equally  in  the  right,  or 
equally  in  the  wrong,  the  law  does  not  interpose. 

"  In  sequali  jure  melior  est  conditio  possidentis."  (Ontario  Banks. 
Worthingtou,  12  Wend.  001  ;  M'Laughlin  v.  Waite,  9  Cow.  674;  Grave* 
V.  Delaplaine,  14  Johns.  159.)  "In  pari  delicto  potior  est  conditio  defend- 
entis."  (See  Peck  v.  Burr,  10  N.  Y.  294 ;  Tracy  v.  Talmage,  14  N.  Y.  1G2, 
181,  216  ;  Candee  v.  Lord,  2  N.  Y.  269,  276;  Meech  v.  Stoner,  19  N.  Y.  28; 
Bennett  ».  American  Art  Union,  5  Sandf.  631  ;  Schroeppel  v.  Corning,  & 


MAXIMS  OF  JURISPRUDENCE.  339 

Denio,  241 ;  Nellis  i;.  Clark,  20  Wend.  28 ;  4  Hill,  436 ;  Perkins  v.  Savage, 
15  Id.  415;  Westfall  v.  Jones,  23  Barb.  12;'Vischer  v.  Yates,  11  Jolins, 
26.) 

In  case  of  illegal  contracts,  says  Story,  or  in  those  in  wLicb  one  party 
has  placed  property  in  the  hands  of  another  for  illegal  purposes,  as  for 
smuggling,  if  the  latter  refuses  to  account  for  the  proceeds,  and  fraudu- 
lently or  unjustly  withholds  them,  the  former  must  bear  his  loss,  for  in 
pari  delicto,  &c.  (Eq.  Jur.  §§61,  298;  Story  on  Ag.  §198.)  So  when 
there  is  equal  equity,  the  defendant  has  as  strong  a  claim  to  the  protection 
of  a  court  of  equity  for  his  title,  as  the  plaintiff  has  to  its  assistance  in 
order  to  assert  his  title,  and  the  court  will  not  interpose  on  either  side. 
But  where  there  is  a  great  preponderance  of  wrong  upon  one  side,  as  in 
cases  of  usury,  or  where  one  party  violates  a  confidence  as  well  as  a  pro- 
vision of  law,  the  injured  party,  although  not  free  from  blame,  may  have 
redress.     (Ford  v.  Harrington,  16  N.  Y.  285.) 

16.  Between  rights  otherwise  equal,  the  earliest  is 
X)referred. 

"  Qui  prior  est  in  tempore  potior  est  in  jure."  (See  Muir  v.  Schenck, 
3  Hill,  228;  Poillon  v.  Martin,  1  Sandf  Ch.  578;  Watson  v.  Le  Row,  6 
Barb.  485;  Weaver  v.  Toogood,  1  Id.  241;  Lynch  v.  Utica  Ins.  Co.  18 
Wend.  253,  256:  Berry  ».  Mut.  Ins.  Co.  2  Johns.  Ch.  608;  Truscott  v. 
King,  6  Barb.  351;  Seymour  v.  Wilson,  16  Barb.  299;  Warner  ».  Blake- 
man,  36  Barb.  520;  Hertell  v.  Bogert,  10  Paige,  60;  Erabree  v.  Hanna,  5 
Johns.  103;  Wilkes  v.  Harper,  2  Barb.  Ch.  354;  Cherry  v.  Monroe,  Id. 
618.) 

This  principle  makes  the  foundation  of  all  original  titles  to  lands  both 
by  private  and  by  public  law  ;  the  first  occupant  acquires  the  first  right. 
The  maxim  applies  also  in  cases  of  mortgages,  attachments,  executions  and 
other  liens  attaching  upon  property  either  by  the  agreement  of  parties  or 
by  tlie  operation  of  law. 

17.  No  man  is  responsible  for  that  which  no  man  can 
control. 

"  Actus  Dei  facit  nemini  injuriam." 

This  is  a  maxim  of  the  common  law  with  regard  to  obligations  created 
merely  by  operation  of  law.  But  it  has  not  been  considered  applicable  to 
contracts.  (Tompkins  r.  Dudley,  25  N.  Y.  170;  Harmony  r.  Bingham,  12 
N.  Y.  99;  Brown  v.  Royal  Ins.  Co.  1  El.  &  EI.  853.)  Tiic  commissioners 
have  proposed,  however,  to  extend  this  principle  to  contracts.  (See 
§  727.) 


■340  MAXIMS  OF  JURISPRUDENCE. 

18.  The  law  helps  the  vigilant,  before  those  who  sleep 
on  their  rights. 

"  Vigilantibus,  non  dormientibus,  leges  subveniunt."  (Toole  w.  Cook, 
16  How.  Pr.  144.) 

Thus  the  law  may  deny  relief  to  one  who  has  long  and  negligently  de- 
layed to  file  a  bill  for  specific  performance.  (Milwood  v.  Earl  of  Thanet, 
5  Ves.  720;  Alley  ».  Ducharaps,  13  Ves.  228.)  So  in  the  spirit  of  this 
maxim  the  statute  of  limitations  prescribes  definite  periods,  after  the  ex- 
piration of  which  the  law  will  refuse  its  aid.  however  clear  may  be  the 
right  of  the  party  claiming  it,  or  the  wrong  of  his  opponent.  See,  for 
other  illustrations,  Smedburg  v.  More,  26  Wend.  238,  247 ;  Hazul  v.  Dun- 
ham, 1  Hall,  655,  658 ;  Bruen  v.  Hone,  2  Barb.  586,  595 ;  Taylor  v.  Fleet, 
4  Id.  95,  103 ;  Bench  v.  Sheldon,  14  Id.  66,  71  ;  Munn  v.  Worrall,  16  Id. 
221,  232 ;  Voorhees  v.  Seymour,  26  Id.  569,  583 ;  Fanning  t\  Dunham,  5 
Johns.  Ch.  122,  145 ;  Story  Eq.  Jur.  §  529. 

19.  The  law  respects  form  less  than  substance. 

(Francis'  Maxims,  No,  13.) 

On  this  principle  the  law  grants  relief  to  one  who  has  omitted  to  per- 
form an  obligation  at  a  time  specified  by  the  contract,  when  it  is  evident 
that  punctual  performance  was  not  an  essential  element  of  the  agreement. 
(Adams'  Equity,  88.)  So  it  declares  sufficient  certain  defective  executions 
of  powers;  and  the  want  of  a  seal,  or  of  witnesses,  or  of  a  signature,  or 
defects  in  the  limitations  of  the  estate  or  interest,  may  sometimes  be  aided. 
In  the  same  spirit  the  law  upholds  in  certain  cases  the  defective  perform- 
ance of  conditions.  (Story  Eq.  Jur.  §  97  ;  Spaulding  v.  Hallenbeck,  39 
Barb.  78;  Clute  v.  Robison,  2  Johns.  595,  614;  Popham  v.  Bampfield,  1 
Vern.  79 ;  Francis'  Maxims,  60.)  So  it  will  mitigate  the  damages  which 
by  a  strict  interpretation  of  a  contract  a  party  thereto  might  recover,  if  it 
operates  oppressively.     (Skinner  v.  White,  17  Johns.  357.) 

"Qui  hajret  in  litera,  hseret  in  cortice,"  is  a  maxim  to  the  same  efi'ect, 
often  cited  with  approval.  (Wadsworth  v.  Thomas,  7  Barb.  449;  Ayles- 
worth  13.  Brown,  10  Id.  167 ;  Watervliet  Turnpike  Co.  v.  M'Kean,  6  Hill, 
620;  Leavitt  v.  Fisher,  4  Duer,  23  ;  Langdon  v.  Astor,  8  Id.  601 ;  Jackson 
V.  Housel,  17  Johns.  184;  Pillow  v.  Bushnell,  4  How.  Pr.  12.) 

20.  That  which  ought  to  have  been  done,  is  to  be 
regarded  as  done,  in  favor  of  him  to  whom,  and  against 
him  from  whom,  jDerformance  is  due. 

Thus  an  agreement  for  a  valuable  consideration  will  be  treated  as  ac- 
tually executed  from  the  period  when  it  ought  to  have  been  performed  in 
favor  of  a  person  entitled  to  insist  on  its  performance.     On  this  principle 


MAXIMS  OF   JURISPRUDENCE.  341 

money  agreed  or  devised  to  be  laid  out  in  land,  will  be  treated  as  real 
estate  ;  and  land  contracted  or  devised  to  be  sold  will  be  treated  as  money. 
(Story  Eq.  Jur.  §  64,  g ;  Adams'  Equity,  74.)  See,  for  other  illustrations 
of  the  maxim,  Burch  v.  Newberry,  1  Barb.  648,  664 ;  Hasbrouck  v.  Pad- 
dock, 1  Id.  635;  Craig  v.  Leslie,  3  Wheat.  563;  Rosevelt  v.  Bank  of  Nia- 
gara, Hopk.  583. 

21.  That  whicli  does  not  appear  to  exist  is  to  be  re- 
garded as  if  it  did  not  exist. 

"  De  non  apparentibus  et  de  non  existentibus  eadem  est  ratio."  (John- 
eon  V.  Stagg,  2  Johns.  519.) 

Thus  upon  a  special  verdict  a  court  will  not  assume  a  fact  not  stated  in 
it,  nor  draw  inferences  of  facts  necessary  for  the  determination  of  the  case, 
from  other  statements  therein.  (Tanerd  v.  Christy,  12  M.  &  W.  316  ," 
Jenks  V.  Hallet,  1  Caines,  60.)  If  a  notice  of  dishonor  is  good  upon  its 
face,  the  court  will  not  entertain  an  objection  founded  upon  the  possible 
existence  of  another  note,  not  shown  to  exist.  (Youngs  v.  Lee,  12  N.  Y. 
554 ;  Cook  d.  Litchfield,  5  Sandf.  330,  340.) 

"  Quod  non  apparet,  non  est."     (Yates  ».  People,  6  Johns.  505.) 

22.  The  law  never  requires  impossibilities. 

"Lex  non  cogit  ad  impossibilia."  (Co.  Litt.  231,  5;  Schroedert'.  Hud- 
son Riv.  R.  R.  Co.  5  Duer,  62.)  "  Impotentia  excusat  legem."  (Jackson 
V.  Sellick,  8  Johns.  271;  Jackson  v.  Johnson,  5  Cow.  103.) 

If  an  estate  is  granted  upon  a  condition  subsequent  which  is  essentially 
impossible,  the  condition  is  void,  and  the  estate  is  absolute.  (2  Blacks. 
Com.  186.)  If  performance  of  the  condition  of  a  bond  is  rendered  impos- 
sible by  the  act  of  the  obligee,  the  obligor  is  excused.  (Holmes  v.  Guppy, 
3  M.  «&  W.  389.)  But,  except  in  certain  special  cases,  the  law  does  not 
excuse  the  non-performance  of  impossibilities  which  one  has  expressly 
undertaken  to  perform. 

23.  The  law  neither  does  nor  requires  idle  acts. 

"  Lex  non  cogit  ad  vana  seu  inutilia."  (Boot  v.  Franklin,  3  Johns. 
210.)     "  Lex  nil  frustra  facit." 

It  is  a  settled  principle,  says  Ciiancellor  Kent,  that  a  court  will  not  un- 
dertake to  exercise  a  power,  unless  it  can  exercise  it  to  some  purpose. 
(Huntington  v.  Nicoll,  3  Johns.  598.)  It  will,  for  example,  refuse  a  writ 
of  mandamus,  if  it  is  manifest  that  it  must  be  vain  and  fruitless,  or  cannot 
have  a  beneficial  effect.  (People  v.  Supervisors  of  Greene,  12  Barb.  222; 
People  V.  Tremain,  29  Barb.  90;  17  How.  Pr.  142.)  Nor,  on  the  principle 
of  this  maxim,  will  the  law  require  individuals  to  bring  suits  or  do  other 


342  MAXIMS  OF  JURISPRUDENCE. 

acts  which  will  be  fruitless.  (Loomis  i\  Tifft,  16  Barb.  544.)  A  demand 
is  excused,  when  compliance  therewith  is  impossible.  (Schroeder  v.  Hud- 
son R.  R.  R.  Co.  5  Duer,  63.) 

24.  The  law  disregards  trifles. 

"  De  minimis  non  curat  lex.  Nimia  subtilitas  in  jure  reprobatur. 
Bonse  fidei  non  convenit  de  apicibus  juris  disputare."  (Ulpian  Dipf.  17,  1, 
29 ;  see  Shipman  v.  Shafer,  1 1  Abb.  Pr.  456  ;  Matter  of  Empire  City  Bank, 
18  N.  Y.  218.) 

The  law  will  not  deprive  one  of  all  compensation  on  account  of  unin- 
tentional and  unimportant  variations  from  the  terms  of  his  agreement. 
(Smith  V.  Gugerty,  4  Barb.  621.)  Nor  will  a  court  restrain  by  injunction 
the  publication  of  a  solitary  letter,  having  neither  actual  value  nor  literary 
merit,  the  publication  of  which  would  not  be  productive  of  injury  nor 
oftend  the  most  delicate  sensibility  (Woolsey  v.  Judd,  4  Duer,  599)  ;  nor 
a  trespass  of  a  trifling  character.  (Marshall  v.  Peters,  12  How.  Pr.  223.) 
Where  a  redeeming  creditor  had  paid  a  few  cents  too  little  to  the  sheriff, 
the  redemption  was  sustained  upon  the  authority  of  this  maxim.  {Ex 
parte  Becker,  4  Hill,  615 ;  Hall  v.  Fisher,  9  Barb.  29.)  So  the  Court  of 
Appeals  refused  to  reverse  a  judgment  for  the  defendant,  which  should 
have  been  in  favor  of  the  plaintiff  for  six  cents  damages,  but  with  costs  to 
the  defendant.  (M'Conihe  v.  N.  Y.  &  Erie  R.  R.  Co.  20  N,  Y.  498.)  But 
this  maxim  never  applies  to  the  case  of  a  positive  and  wrongful  invasion 
of  a  right.  (Seneca  Road  Co.  v.  Auburn,  &c.  R.  R.  Co.  5  Hill,  170;  EUi- 
cottville,  &c.  Plank  Road  Co.  v.  Buffalo,  «&c.  R.  R.  Co.  20  Barb.  651.) 

25.  Particular  expressions  qualify  those  which  are 
general. 

"  In  toto  jure  generi  per  speciem  derogatur  et  illud  potissimum  habe- 
tur  quod  ad  speciem  directum  est."     (See  Piatt  v.  Lott,  17  N.  Y.  478.) 

26.  Contemporaneous  exposition  is  in  general  the 
best. 

"  Contemporanea  expositio  est  optima  et  fortissima  in  lege." 

In  construing  a  statute,  great  regard  should  be  paid  to  the  opinion  in 
respect  to  it  entertained  by  persons  learned  in  the  law,  at  the  time  of  its 
passage.  (Sedgwick  Stat.  &  Const.  Law,  251;  Dwarris,  562.)  "A  con- 
temporaneous is  generally  the  best  construction  of  a  statute.  It  gives  the 
sense  of  a  community  of  the  terms  made  use  of  by  a  legislature.  If  there 
is  ambiguity  in  the  language,  the  understanding  and  application  of  it 
when  the  statute  first  came  into  operation,  sanctioned  by  long  acqui- 
escence on  the  part  of  the  legislature  and  judicial  tribunals,  is  the  strongest 
evidence  that  it  has  been  rightly  explained  in  practice.     A  construction 


MAXIMS   OF   JURISPRUDENCE.  343 

«nder  such  circumstances  becomes  established  law."  (Packard  v.  Richard- 
son, 17  Mass.  143;  Curtis  v.  Leavitt,  15  N.  Y.  217.)  "A  contemporaneous 
exposition,  even  of  the  Constitution  of  the  United  States,  practiced  and 
acquiesced  in  for  a  period  of  years,  fixes  the  construction."  (4  Kent  Com. 
465,  note.) 

27.  The  greater  contains  the  less. 

"  Omne  majus  continet  in  se  minus.  In  eo  quod  plus  est  semper  inest 
«t  minus.  (Dig.  50,  17,  110.)  "  Non  debet  cui  plus  licet.  Quod  minus 
est  non  licere."  (Ulpian  Gothofredi,  Reg.  Juris.  Compare  Dig.  50,  17, 
26-37.)  "Omne  majus  in  se  minus  complectitur."  (Kip  «.  Brigham,  6 
Johns.  157.) 

One  makes  a  good  tender  of  a  debt  due  when  he  tenders  in  due  form 
more  than  he  is  bound  to  pay  (Wade's  Case,  5  Co.  Rep.  115;  Hubbard 
-».  Chenango  Bank,  8  Cow.  101 ;  Dean  v.  James,  4  B.  &  Ad.  546) ;  and  so 
acts  are  valid  if,  having  permission  to  do  several  things  for  his  own  ben- 
efit, a  party  does  some  of  them  (Isherwood  v.  Oldknovv,  3  M.  &  Selw.  392), 
or  if,  as  the  agent  of  another,  he  does  less  than  his  power  authorizes  him 
to  do.     (Story  Agency,  §  172.) 

A  power  to  sell  an  estate  includes  a  power  to  transfer  a  limited  inter- 
est.    (Williams  v.  Woodard,  2  Wend.  492.) 

But  where  a  statute,  authorizing  special  proceedings,  directs  eighteen 
jurors  to  be  summoned,  this  maxim  does  not  justify  the  summoning  of 
twenty.     (Farrington  v.  Morgan,  20  Wend.  207.) 

28,  Superfluity  does  not  vitiate. 

"  utile  per  inutile  non  vitiatur."  (Rickets  v.  Livingston,  2  Johns.  Cas. 
101 ;  Yates'  Case,  4  Johns.  367  ;  Ogden  v.  Barker,  18  Id.  93  ;  Aylesworth 
■e.  Brown,  10  Barb.  174.) 

This  maxim  has  long  been  familiar  to  the  common  law.  It  has  had 
frequent  application  in  the  law  of  conveyancing,  of  pleading  and  of  evi- 
dence. Thus,  a  deed  which  grants  an  estate  by  language  explicit  and  cer- 
tain, is  not  defeated  or  affected  by  the  presence  of  words  that  are  repug- 
nant to  the  general  sense.  So  in  pleading,  surplusage,  or  the  allegation 
of  purely  irrelevant  matter,  does  not  aSect  that  which  is  pertinent  and  in 
other  respects  valid.  (Edgerton  v.  N.  Y.  &  Harlem  R.  R.  Co.  35  Barb. 
329;  Fowler  v.  Mott,  19  Id.  221;  Polly  v.  Saratoga  &  Wash.  R.  R.  Co.  9 
Id.  464;  People  v.  Adams,  17  Wend.  475;  Chapman  v.  Siuitii,  13  Johns. 
80;  Mason  v.  Franklin,  3  Id.  206;  Douglas  v.  Sattcrlee,  11  Id.  19.)  Nor 
need  any  evidence  be  given  of  an  averment  which  is  wholly  immaterial. 
(Fairchild  v.  Ogdensburgh  R.  R.  15  N.  Y.  837.)  A  verdict  which  finds 
the  whole  issue  is  not  vitiated  by  finding  more.  (Patterson  v.  United 
States,  3  Wheat,  225.) 


344  MAXIMS   OF  JURISPRUDENCE. 

29.  That  is  certain  which  can  be  made  certain. 

"Id  ccrtum  est  quod  certuin  reddi  potest."  (Olmsted  v.  Loomis,  9  N, 
Y.  434;  Hyland  v.  Stafford,  10  Barb.  5G5;  Ostrander  v.  Walter,  2  Hill, 
332.) 

Thus  ■when  a  testator  gives  his  "-Sac/Elands"  to  certain  devisees,  the 
description  is  rendered  definite  and  certain  when  it  is  shown  by  evidence 
that  particular  parcels  of  land  were  called  and  known  by  that  name  by 
the  testator  and  his  family.  (Ryerss  v.  Wheeler,  22  Wend.  148.)  So- 
■where  a  deed  identifies  the  parties  in  whose  favor  it  is  made,  it  is  sufficient, 
though  it  does  not  name  them.  (Gates  v.  Graham,  12  Wend.  53,  56.) 
So,  when  a  rule  for  the  commitment  of  a  person  did  not  specify  the  sum 
for  non-payment  of  which  the  commitment  was  ordered,  but  directed  a 
referee  therein  named  to  estimate  it,  it  was  declared,  on  the  principle,  id 
cerium  est,  &c.,  that  the  rule  was  sufficiently  definite  in  respect  to  the 
amount,  for  the  referee's  report,  when  filed  and  confirmed,  became  part  of 
the  rule  and  the  act  of  the  court.  (People  v.  Nevins,  1  Hill,  158 ;  People 
V.  Cavanaugh,  2  Abb.  Pr.  88.)  Upon  the  authority  of  this  maxim,  it  has 
been  held  that  rent,  payable  in  wheat,  is  to  be  treated  as  a  liquidated  de- 
mand (Van  Rensselaer  v.  Jones,  2  Barb.  668),  and  so  where  rent,  though 
payable  in  cash,  was  subject  to  a  deduction  for  repairs.  (Smith  v.  Fyler, 
2  Hill,  648.) 

30.  Time  does  not  confirm  a  void  act. 

"  Quod  ab  initio  non  valet,  in  tractu  temporis  non  convalescit.  Quod 
initio  vitiosum  est,  non  potest  tractu  temporis  convalescere." 

"*rhe  general  rule  is  that  whenever  any  contract  or  conveyance  is  void, 
either  by  a  positive  law  or  upon  principles  of  public  policy,  it  is  deemed 
incapable  of  confirmation,  upon  the  maxim,  quod  ab  initio,^''  &c.  (Story 
Eq.  Jur.  §  306 ;  Vernon's  Case,  4  Co.  Rep.  2  h.)  "  No  length  of  time,"'  said 
Lord  Talbot, "  will  bar  a  fraud."  (Cas.  temp.  Talbot,  73.)  "  It  is  certainly 
true,"  says  Mr.  Justice  Story,  "that  length  of  time  is  no  bar  to  a  trust 
clearly  established ;  and  in  a  case  where  fraud  is  imputed  and  proved, 
length  of  time  ought  not,  upon  principles  of  eternal  justice,  to  be  admit- 
ted to  repel  relief.  On  the  contrary,  it  would  seem  that  the  length  of  time, 
during  which  the  fraud  has  been  successfully  concealed  and  practiced  is 
an  aggravation  of  the  offense,  and  calls  more  loudly  upon  a  court  of  equity 
to  grant  ample  and  decisive  relief.  But  length  of  time  necessarily  ob-. 
scures  all  human  evidence ;  and  as  it  thus  removes  from  the  parties  all 
immediate  means  to  verify  the  nature  of  the  original  transactions,  it  oper- 
ates by  way  of  presumption  in  favor  of  innocence  and  against  imputation 
of  fraud."     (Provost  v.  Gratz,  6  Wheat.  498.) 

In  certain  cases,  also,  though  the  original  agreement  was  void,  the  law 
presumes  a  new  and  valid  contract  from  additional  circumstances.     Thus. 


MAXIMS  OF   JURISPRUDENCE.  345 

in  the  Roman  Law,  if  a  debtor  pledged  the  property  of  another,  and  it 
afterward  became  his  own,  his  creditor  had  his  action.  (D.  13,  7,  41.)  And 
though  if  a  husband  sold  his  wife's  dowry,  the  sale  was  invalid;  yet  if  at 
her  death  the  land  became  his,  the  sale  was  established.     (D.  41,  3,  42.) 

31.  The  incident  follows  the  principal,  not  the  prin- 
cipal the  incident. 

(Battle  V.  Coit,  26  N.  Y.  404.)  "Accessorium  non  ducit  sed  sequitur 
suum  principale." 

By  a  general  grant  of  the  reversion,  the  rent  will  pass  with  it  as  an  in- 
cident, though  by  the  grant  of  the  rent  generally,  the  reversion  will  not 
pass.  (Van  Wicklen  v.  Paulson,  14  Barb.  654;  Demarest  v.  Willard,  8 
Cow.  206;  Marshall  v.  Moseley,  21  N.  Y.  282.)  So  the  grantee  of  land,  or 
the  assignee  of  a  lease,  assumes  the  burden  of  the  covenants  that  run  with 
the  land  or  are  reserved  by  the  lease. 

So,  too,  the  assignment  of  a  bond  or  other  principal  debt,  carries  with 
it  a  mortgage,  or  other  collateral  security,  given  to  secure  it.  (Jackson  v. 
Blodget,  5  Cow.  202;  Langdon  v.  Buel,  9  Wend.  80;  Green  v.  Hart,  1 
Johns.  580;  Rose  v.  Baker,  13  Barb.  230;  Parmelee  v.  Dann,  23  Id.  461; 
Jackson  v.  Willard,  4  Johns.  41;  Cooper  v.  Newland,  17  Abb.  Pr.  342.) 

32.  An  interpretation  which  gives  effect  is  preferred 
to  one  which  makes  void. 

"  Ut  res  magis  valeat  quam  pereat."  (Langdon  v.  Astor,  16  N.  Y.  47  ; 
Nichols  V.  McEwen,  17  Id.  25;  Laub  v.  Buckmiller,  Id.  627.) 

This  is  a  general  principle  which  governs  the  construction  of  all  agree- 
ments, oral  or  written,  and  of  all  unilateral  instruments,  like  deeds  or  wills, 
wliich  are  designed  to  embody  the  intention  of  a  party.  (Fish  v.  Hub- 
bard, 21  Wend.  652;  Mason  v.  White,  11  Barb.  173;  Aiken  v.  Albany  N. 
&  C.  R.  R.  Co.  26  Id.  289;  Warhus  v.  Bowery  Savings  Bk.  4  Duer,  59; 
Hall  V.  Newcomb,  3  Hill,  233  ;  Jackson  v.  Rowland,  6  Wend.  671;  People 
V.  Van  Rensselaer,  9  N.  Y.  333;  Schermerhorn  v.  Talman,  U  Id.  135; 
Nichols  V.  McEwen,  17  Id.  25;  Richards  v.  Edick,  17  Barb.  2G9;  Warhus 
V.  Savings  Bank,  5  Duer,  71 ;  Waterbury  v.  Sinclair,  IG  How.  Pr.  312,  343; 
Sherman  v.  Elder,  24  N.  Y.  384  ;  Spear  v.  Downing,  34  Barb.  527.)  It 
may  apply  to  a  judgment  (Woodgate  v.  Fleet,  9  Abb.  Pr.  239),  or  a  record. 
(Hatcher  v.  Rocheleau,  18  N.  Y.  92.)  Especially  is  it  applied  when  the 
effect  will  be  to  prevent  a  forfeiture.     (Ilurd  v.  Hunt,  14  Barb.  575.) 

33.  Interpretation  must  be  reasonable. 

Everything  is  to  have  a  reasonable  construction,  and  everything  nec- 
essary to  make  a  rule  reasonable  is  implied.  (Jones  v.  Gibbons,  8  Exch. 
922;  see  Buck  v.  Burk,  18  N.  Y.  339,  341.) 


S46  MAXIMS  OF  JURISPRUDENCE. 

34.  Where  one  of  two  innocent  persons  must  suffer  by 
the  act  of  a  third,  he,  by  whose  negligence  it  happened, 
must  be  the  suflerer. 

In  Griswold  v.  Haven  (35  N.  Y,  595),  this  maxim  is  asserted  and  en- 
forced as  a  principle  upon  which,  independently  of  the  law  of  agency, 
an  innocent  party  may  be  held  responsible  for  the  acts  of  another.  Tlie 
maxim  is  also  cited  and  applied  in  Exchange  Bank  v.  Monteath,  2G  N. 
T.  505,  513;  Sandford  v.  Handy,  23  Wend.  268;  Root  v.  French,  13  Id. 
572. 


MAXIMS  ARE  PEINCIPLES  OF  THE  LAW. 

FROM    KAm's    science   OF    LEGAL   JUDGMENT. 

A  part  of  tlie  law  of  England  consists  of  Maxims.^  They 
are  principles  of  the  law.^  A  maxim  is  often  called  a  princi- 
ple ;  ^  and,  says  Sir  E,  Coke,  "  It  is  all  one  with  a  rule,  a  com- 
mon ground,  postulatum,  or  an  axiom,  and  it  were  too  much 
curiosity  to  make  nice  distinctions  between  them."  *  And  he 
elsewhere  says,  "  A  maxim  is  a  proposition,  to  be  of  all  men 
confessed  and  granted,  without  proof,  argument,  or  discourse."  ^ 
The  author  of  "  Doctor  and  Student,"  in  naming  maxims  as  a 
ground  of  the  law,  observes  that  this  ground  "  standeth  in  di- 


'  Litt.  s.  3,  90;  Co.  Litt.  11  a.  Generally  on  these  maxims,  see  Doct. 
&  St.  Dial.  I,  ch.  viii  &  ix ;  Fortescue  de  Laud,  ch,  viii ;  Doderidge's 
English  Lawyer;  Wingate's  Maxims  of  Reason,  or  the  reason  of  the  Com- 
mon Law  of  England  ;  Francis'  Maxims  of  Equity;  and  the  work  called 
Grounds  and  Rudiments  of  Law  and  Equity,  Lord  Bacon's  tract,  entitled 
The  Elements  of  the  Common  Laws  of  England,  contains  "  A  Collection 
of  some  Principal  Rules  and  Maxims  of  the  Common  Law,  with  their  lati- 
tude and  extent." 

The  reader  may  also  be  referred  to  the  Index  of  Maxims  subjoined  to 
Coke's  2d  Institute.  And  it  may  not  be  unimportant  to  mention,  that 
Mr.  Justice  Chambre  possessed  a  very  large  collection  of  Maxima.  5 
Taunt.  159. 

Best,  C.  J.,  speaking  of  the  improvement  which,  in  the  time  of  Henry 
III,  was  made  in  the  law,  by  incorporating  much  of  the  Civil  Law  with 
the  Common  Law,  observes,  "  We  know  that  many  of  the  maxims  of  tlie 
common  law  are  borrowed  from  the  civil  law,  and  are  still  quoted  in  tlic 
language  of  the  civil  lav/.  Notwithstanding  the  clamor  raised  by  our  an- 
cestors for  the  restoration  of  tlie  laws  of  Edward  the  Confessor,  I  believe 
that  these,  and  all  the  Norman  customs  which  followed,  would  not  have 
been  suflScient  to  form  a  system  of  law  sufficient  for  the  state  of  society  in 
the  time  of  Henry  III.  Both  courts  of  justice,  and  law  writers,  were 
obliged  to  adopt  such  of  the  rules  of  the  Digest  as  were  not  inconsistent 
with  our  principles  of  jurisprudence."     5  Bing.  1G7. 

^  Co.  Litt.  11  a,  67  a,  343  a.  '  Litt.  s.  648;  Co.  Litt.  11  a,  343  a. 

*  Co.  Litt.  11  a.  '  Co.  Litt.  67  a,  343  a. 


348  MAXIMS   ARE  PRINCIPLES   OF  THE   LAW. 

vers  principles,  that  be  called  in  the  law  maxims,  the  which 
have  always  been  taken  for  law  in  this  realm,  so  that  it  is  not 
lawful  for  any  that  is  learned  to  deny  them  ;  for  every  one  of 
those  maxims  is  sniEcient  authority  to  himself.  .  .  .  And 
such  maxims  be  not  only  holden  for  law,  but  also  other  cases 
like  unto  them,  and  all  things  that  necessarily  follow  upon  the 
same,  are  to  be  reduced  to  the  like  law ;  and  therefore  most 
commonly  there  be  assigned  some  reasons  or  considerations 
why  such  maxims  be  reasonable,  to  the  intent  that  other  cases 
like  may  the  more  conveniently  be  applied  to  them."  ^ 

Like  cases  are  accordingly  very  commonly  applied  to  max- 
ims ;  they  being  frequently  used  in  the  formation  of  a  judg- 
ment, which  a  judge  or  court  delivers.  Some,  which  readily 
occur  for  the  purpose  of  examples,  are  :  Modus  et  conventio 
vincunt  legem,^ — verba  chartarum  fortius  accipiuntur  contra 
proferentem,^ — expressum  facit  cessare  tacitum,* — ^benignae  fa- 
ciendee  sunt  interpretation es  chartarum,  ut  res  magis  valeat 
quam  pereat,^ — verba  intentioni,  et  non  e  contra,  debent  inser- 
vire,® — quisque  potest  renunciare  juri  pro  se  introducto,'' — om- 
nis  ratihabitio  retrotrahitur,  et  mandato  sequiparatur,^ — igno- 
rantia  juris  non  excusat,^ — in  pari  delicto  potior  est  conditio 
defendentis,^" — volenti  non  fit  injuria," — sic  utere  tuo  ut 
alienum  non  Isedas,^^ — quando  aliquid  prohibetur  ex  directo, 
prohibetur  et  per  obliquum,^^ — actus  Dei  nemini  facit  inju- 
riam," — ^the  law  will  not  work  a  wrong,^^ — actio  personalis 
moritur  cum  persona, ^^ — leges  posteriores  priores  contrarias 
abrosrant." 


'  Doct.  &  St.  Dial.  J,  ch.Tiii. 

*  1  Lord  Raym.  517;  8  Durn.  &  E.  605;  4  Taunt.  131. 

=  13  East,  87.  *  4  Taunt.  330 ;  4  Moore  &  P.  8. 

'  Willes,  332;  2  Younge  &  Jerv.  618;  14  East,  248. 

'  Willes,  332 ;  2  Younge  &  Jerv.  618.  '  3  Bos.  &  P.  643. 

'  9  East,  281 ;  3  Barn.  &  Aid.  692. 

'  Dougl.  454,  ed.  1783;  5  Taunt.  153, 158. 
'"  Dougl.  454,  ed.  1783;  5  Taunt.  159. 

"  5  Taunt.  162;  Cas.  t.  Talb.  40.  ''  7  Taunt.  498,  499,  522,  529. 

'^  7  Taunt.  507.  '*  3  Bing.  375. 

"  1  Lord  Raym.  517;  5  Durn.  &  E.    385;    Actus  legis  nemini  est  dam- 
nosus,  2  Inst.  287.  "  2  Maule  &  S.  415. 

"  1  Bos.  &  P.  N.  Rep.  7  ;  1  Maule  &  S.  597. 


MAXIMS  ARE  PRINCIPLES   OF  THE   LAW.  34:9 

Mr.  John  Townshend,  the  editor  of  the  American  edition  of  Ram's  Science  of 
Legal  Judgment,  added  to  the  foregoing  the  following: 

Maxims,  or  legal  maxims,  are  not  to  be  received  as  axioms. 
We  believe  that  not  a  single  law  maxim  can  be  pointed  out 
which  is  not  obnoxious  to  objection.  The  old  law  maxims 
must  be  put  aside  or  forgotten,  or  remembered  only  as  things 
of  the  past  and  dead,  even  as  we  have  put  aside  and  forgotten 
maxims  in  science,  supplying  their  places  with  maxims  drawn 
from  a  larger  experience  and  more  philosophical  analysis. 
"  Perhaps  there  is  a  period  in  every  system  of  law  previous  to 
which  the  formation  of  maxims  will  be  productive  of  bad 
effects,  as  leading  to  the  establishment  of  principles  which  it  is 
not  permitted  to  controvert,  but  which  more  enlightened  views 
would  repudiate."  ^  The  benefit  which  science  has  received 
from  the  use  of  maxims  is  of  a  questionable  nature,  and  the 
adoption  of  these  is  of  a  questionable  nature  whenever  the 
ideas  are  confused.^  In  Bonomi  v.  Backhouse,^  Erie,  J.,  says : 
^'  The  maxim  sic  utere  tuo  ut  alienum  non  Icedas  is  mere  verbi- 
age. A  party  may  damage  the  property  of  another  where  the 
law  permits  ;  and  he  may  not,  where  the  law  prohibits ;  so 
that  the  maxim  can  never  be  applied  until  the  law  is  ascer- 
tained ;  and  when  it  is,  the  maxim  is  superfluous."  And  in 
Jenkins  v.  Wheeler,^  the  court  held  that  the  maxim,  "  Freight 
is  the  mother  of  wages,"  is  not  universally  true. 


'  Fortesque  dc  Laridibus,  &c.  ch.  viii,  note  to  edition  by  Amos;  see 
Doderidge's  English  Lawyer ;  Doctor  and  Student,  Dial.  I,  ch.  viii,  ix  ; 
Bacon's  Preface  to  his  Maxims. 

'  Locke  on  the  Understanding,  Bk.  IV,  ch.  vii. 

'  27  Law  Jour.  N.  S.  888,  Q,  B.  '  4  Robertson,  575. 


MAXIMS,    LACONICS,     &c. 
FROM  Hoffman's  legal  studies. 

Maxims. — It  was  a  no  less  true  tlian  felicitous  saying  of 
Swift,  that  "  abstracts,  abridgments,  summaries,  maxims,  &c., 
liave  the  same  use  with  burning  glasses  ;  they  collect  the  dif- 
fused rays  of  wit  and  learning  in  authors,  and  make  them  point 
with  warmth  and  quickness  upon  the  reader's  imagination." 
Seneca  thinks  that  "  he  who  lays  down  maxims  for  the  govern- 
ment of  our  lives,  and  the  control  of  our  passions,  obliges  hu- 
man nature,  not  only  in  the  present,  but  in  all  succeeding  gen- 
erations."    Yoltaire,  whose  religion  was  always  bad,  but  whose 
morals  were  often  good,  remarks  in  substance,  that  Rochefou- 
cault's  Maxims  have  contributed,  more  than  any  other  similar 
performance,  to  form  the  taste  of  the  French  people  ;  and  fur- 
ther, that  his  memoirs  of  the  Regency  of  Anne  of  Austria  are 
read^  but  that  his  Maxims  or  Sentences  are  committed  to  mem- 
ory.    Lord  Chesterfield,  whose  far  famed  letters  to  his  son  we 
cannot  entirely  approve,  remarks  that  "  Rochefoucault's  little 
book  of  maxims,  which  I  would  advise  you  to  look  into  for 
some  moments  at  least  every  day  of  your  Kfe,  is,  I  fear,  too 
like  and  too  exact  a  picture  of  human  nature.     I  own,  it  seems 
to  degrade  it,  but  yet  my  experience  does  not  convince  me 
that  it  degrades  it  unjustly." 

Laconics,  &c. — The  student  must  have  observed  that  we 
have  in  our  language  a  number  of  words  which  import 
generically  nearly  the  same  meaning,  but  which  specifically 
vary  their  signification,  although  the  precise  limits  sometimes 
cannot  be  well  defined  :  such  are  the  words  aphorism,  apoph- 
tJiegm,  proverb,  rule,  maxim,  sentence,  principle,  motto,  adage, 
device, precept,  axiom,  laconlsm,  &c.  They  have  all,  however, 
a  common  object — the  condensation  of  much  thought  in  few 
and  apt  words :  they  convey  some  lesson,  in  pointed  and  im- 
pressive language  ;  they  are  intended  to  be  easily  remembered, 
form  much  of  the  riches  of  popular  wisdom — and,  like  coins 


MAXIMS,  LACONICS,   &c.  351 

and  medals,  often  serve  as  historical  evidence  of  manners,  cus- 
toms, opinions,  morals,  &c.,  of  individuals,  classes,  and  even  of 
nations.  They  are  found  in  all  ages,  and  among  all  people ; 
but  have  been  chiefly  used,  and  so  continue  to  be,  among 
people  whose  information  is  but  little  conveyed  through  the 
medium  of  books  and  of  writings.  To  this  remark,  however, 
there  have  been  some  signal  exceptions  ;  for  fashion  has  some- 
times revived  and  caused  them  to  be  much  used  and  sought 
after  by  the  elite  of  society.  In  the  time  of  "  good  Queen 
Bess "  (if  she  ever  were  good),  and  in  those  of  James  and 
Charles,  they  were  not  only  apjDcaled  to  and  greatly  used  in 
conversation  by  men  and  women  of  high  fashion,  but  the 
orators,  and  statesmen,  and  philosophers  collected  them  with 
assiduity  from  all  languages,  and  made  earnest  and  free  use  of 
them,  often  bringing  matters  of  import  to  a  speedy  conclusion 
by  well  applied  proverbs  and  aphorisms.  We  have  remarked 
that  they  belonged  to  all  countries  and  to  all  ages.  The  seven 
sages  of  Greece  had  each  applied  to  him  the  merit  of  first  ut- 
tering some  of  these  ^'■wise  sayings;''^  and  Plutarch  thinks 
that  "  under  the  veil  of  these  curious  sentences  are  hid  those 
germs  of  morals  which  the  masters  of  philosophy  have  after- 
wards developed  into  so  many  volumes."  So  famous  were  the 
Lacedaemonians  for  this  species  of  tersely  expressed  philosophy, 
that  their  short  and  pregnant  expressions  gave  rise  to  one  of 
the  words  belonging  to  the  genus  under  consideration — lacon- 
ics and  laconism  being  nearly  synonymous  with  aphorisms, 
proverbs.  To  the  entire  genus,  however  it  may  be  specifically 
divided,  should  still  belong,  as  Howel  has  well  expressed  it, 
"  shortness,  and  salt^''  for  when  amplified,  they  necessarily  lose 
much  of  their  strength,  and  are  no  longer  capable  of  that 
popular  tradition,  and  of  that  daily  application  which  render 
them  so  valuable.  During  the  luxurious  age  of  Louis  the 
Fourteenth,  so  fashionable  did  proverbs  become,  that  even 
comedies  and  ballets  were  so  contrived  as  to  illustrate  and  en- 
force them  !  The  best  known  and  most  useful  of  tlie  proverbs 
were  literally  acted,  and  by  being  made,  as  it  were,  visible, 
they  could  not  fail  to  leave  an  enduring  impression. 

There  are  two  great  classes  of  proverbs  (using  this  as  the 
generical  word),  viz.,  local  and  universal.     The  first  take  their 


352  MAXIMS,   LACONICS,  «fec. 

rise  from  the  laws,  institutions,  habits,  virtues,  vices,  employ- 
ments, and  peculiarities  of  nations — all  of  which  they  may,  in 
a  degree,  illustrate ;  and  may  be  aptly  cited  in  confirmation  or 
rejection  of  the  testimony  of  history.  They  manifest  the  pe- 
culiar modes  of  thinking  and  of  acting  in  communities ;  show- 
ing us  the  poetical  character  of  one  people,  the  phlegm  of 
another ;  the  nomadic  habits  of  this  nation,  the  retired  and 
fixed  habits  of  that ;  the  wary  policy  of  one,  the  open  and  un- 
suspecting character  of  another. 

The  second  class  of  proverbs  which  we  have  denojninated 
Universal  are  based  on  the  common  nature  of  man  and  of  na- 
tions :  they  go  to  the  heart  and  to  the  understanding  of  all ; 
and  though  variously  expressed  according  to  the  idioms  of  dif- 
ferent languages,  will  be  found  to  be  essentially  the  same  in  all 
ages  and  in  all  nations.  It  is  a  delightful  and  useful  employ- 
ment, to  assure  ourselves  of  the  identity  of  our  species  by 
studying  these  universal  proverbs  ;  they  show  not  only  that 
man  in  all  times  and  in  all  nations  entertained  on  numerous 
subjects  very  similar  oj)inions  ;  but  that  in  similar  situations, 
they  resorted  to  similar  modes  of  enforcing  virtue,  and  of  cor- 
recting the  vices  and  follies  of  those  around  them  :  and  that  in 
so  doing,  they  used  expressions  of  the  same  import,  with  no 
other  variation  than  what  is  referable  to  idiom,  or  to  the  idio- 
cratic  character  of  the  particular  people  among  whom  they  are 
found.  Were  the  proverbs  of  all  nations  collected,  and  philo- 
sophically classed  and  explained,  it  would  be  a  volimae  rich  in 
thoughts,  "  full  of  the  genius,  wit,  and  spirit  of  nations,"  as 
Bacon  well  observed — a  volume  replete  with  the  elements  of 
moral  knowledge,  reflecting  light  on  the  nature  of  our  species, 
and  a  text  book  to  which  historians,  metaphysicians,  moralists, 
legislators,  publicists,  and  even  poets  might  resort,  with  the 
certainty  of  finding  themes,  which  as  Plutarch  remarked,  they 
could  develop  into  so  many  volumes. 


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